and Oleg Temnikov
I. Bureau Veritas v. Republic of Paraguay
In the recent Further decision on objections to jurisdiction dated October 9, 2012 the tribunal in Bureau Veritas, Inspection, Valuation, Assessment and Control, BIVAC B.V. v. Paraguay (ICSID Case No. ARB/07/9) dismissed BIVAC’s claim based on violation of the fair and equitable standard by reasoning that the dispute relates to mere refusal to pay invoices under a pre-shipment inspection contract and that, in doing so, Paraguay has not acted “in a manner that is qualitatively different from an ordinary contracting party.” The tribunal thus upheld the traditional distinction between mere breach of contract and treaty breach st [...]
Akbar the Great once drew with his royal hand a line in the sand. He then told his wise men that if they wanted to keep their jobs, they must invent a way to make the line shorter without touching any part of it. Wise man after wise man approached the line and stood in dismay. No one else but Birbal came with the solution. He stepped forward and drew another line in parallel to the first one, but drew it longer than it. Everyone in the court agreed that the line drawn by the King was shorter and untouched. (A koan)
Foreword: In the eyes of a taxpayer
In the past two weeks civil unrest erupted in Bulgaria causing the Government to step down as a result of the energy prices increase. Proteste [...]
Over the past decade, Africa has emerged as a leading center of economic growth. From mining and manufacturing, to banking and telecoms, nearly every industry is witnessing rapid expansion in Africa, driven by both African enterprises and businesses from around the world. Naturally, an increase in international commerce has resulted in an attendant increase in international arbitration, renewing the interest of arbitrators and practitioners in the region.
Parties seeking to arbitrate in Africa have the choice among several well-known regional African arbitration centers, including the Cairo Arbitration Center (CIRICA) in the north, the Arbitration Foundation of Southern Africa (AFSA) in the [...]
In an earlier post, I’d highlighted five notable legal highlights from 2012. Below, and somewhat belatedly, I offer my post-mortem on some key policy developments from 2012.
1. Venezuela and South Africa beat a retreat
Venezuela’s exit from ICSID was perhaps the most visible policy story of 2012. The move could bolster the caseload of the Permanent Court of Arbitration over the next few years. However, Venezuela has much unfinished business at ICSID – with 28 claims still pending there as of this writing. So, it remains to be seen whether the government will swallow its pride and honor any award emanating from the Washington-based Centre.
While Venezuela’s retreat from ICSID got a l [...]
On 2 November 2012, President Thein Sein approved, after several months of intense debate between Parliament and the Government, Myanmar’s new Foreign Investment Law (‘FIL’ or ‘the Law’). The new Law revises the framework for foreign investment in Myanmar which had been in place since a military coup in 1988. Considering the country’s abundant natural recourses and its location between giant consumer markets India and China, many international companies were eagerly awaiting this new legislation to start investing or increase their existing investments.
The key features of the new Law and the main changes from the previous regime can be summarised as follows.
1. Creating a Favo [...]
As described in Part 1 of this post, the mounting debate about investor-state dispute resolution (ISDR) has crescendoed in the current Trans-Pacific Partnership (TPP) negotiations. There are at least two “schools” of concern with ISDR, both of them voiced inside and outside the TPP context.
Threats to Public Interest Policy
For a growing array of domestic policymakers, civil society organizations and people impacted by ISDR decisions, ISDR is viewed as a threat to vast swaths of public interest policy achieved through decades of struggle, and to the prospect of further advances. Either by winning an investor-state attack and collecting millions in compensation, or by preemptively chillin [...]