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Apropos of ConocoPhillips v. Venezuela: Revision of Earlier Decisions in Fragmented Proceedings – A Matter of Principle?

Apropos of a recent decision in ConocoPhillips v. Venezuela (ICSID Case No ARB/07/30), this post discusses the potential underlying concerns an arbitral tribunal may consider when deciding whether it can revise earlier decisions within the context of fragmented proceedings.

Background

The ICSID proceedings in ConocoPhillips v. Venezuela (ICSID Case No ARB/07/30) commenced in November 2007 under the Netherlands-Venezuela Bilateral Investment Treaty (the “BIT”) and Venezuela’s Foreign Investment law (the “Foreign Investment Law”). The arbitration concerns the Claimants’ interests in two extra-heavy oil projects located in the region in Venezuela known as the Orinoco Oil Belt (Faja Petrolífera [...]

Investment Arbitration: Legal Implications of the Threat to Expropriate

and Oleg Temnikov

I. Foreword
At the end of 2013, the Financial Times reported that a referendum will be held in Berlin on the question whether the State shall take over power supply from the hands of Vattenfall. We use this as an occasion to examine the legal implications in the field of investment arbitration of the threat to expropriate.

II. The views “against” the unlawfulness of a threatened expropriation
In the first place, it must be noted that the existing BITs do not, in general, sanction threats to expropriation, but only the completed act. There are, for example, BITs which provide that “compensation shall be equivalent to the value of the expropriated investment immediate [...]

Proving Corruption in Arbitration: Lessons to be Learned from Metal-Tech v. Republic of Uzbekistan

Factual background

On 4 October 2013 the Tribunal constituted under Metal-Tech Ltd.’s claim against Republic of Uzbekistan (G. Kauffman-Kohler, C. von Wobeser, J. Townsend) issued the award on jurisdiction in the ICSID case ARB/10/03. The peculiar factual background of the case has been previously discussed here.

The approach taken by the Tribunal in this case deserves closer attention as this is one of the few where allegations of corruption managed to have decisive influence on the outcome of the case, unlike most of the cases where bribery considerations are usually ruled out as inconclusive and unproven, although discussed in the award.

Establishing corruption

A number of tribunals ha [...]

Energy & Mining Disputes in Latin America: Trends in Arbitration

The numbers of energy and mining related disputes in Latin America constitute 67 out of 162 or 41% of the total ICSID cases within the region. In most of these disputes the respondents are Argentina, Bolivia, Ecuador or Venezuela, which represent 52 out of 67 or 78% of the total energy and mining ICSID cases in Latin America. With the exception of Argentina, the rest of the above-mentioned countries have withdrawn from the ICSID Convention in 2007, 2010, and 2012, respectively, while of 105 ICSID total related cases submitted against them 52 or 50% are energy and mining related.

The majority of investment treaties offer claimants the option to have different arbitration fora. For Bolivia, Ec [...]

BG Group v Argentina: Would ICSID Arbitration Have Been Different?

and Luis Miguel Velarde Saffer

Last December, the U.S. Supreme Court heard oral argument on BG Group v Argentina – an appeal from a controversial and much-criticized decision of the D.C. Circuit Court of Appeals. The case arose out of emergency actions taken by the Republic of Argentina in late 2001 in the wake of its economic meltdown. BG Group, a UK investor with a sizable stake in an Argentine gas distribution company, was adversely affected by the Argentine emergency measures and initiated UNCITRAL arbitration against Argentina pursuant to Article 8 of the Argentina-UK BIT. BG Group prevailed at the arbitration seated in Washington, D.C., and the resulting award came for review before [...]

Metal-Tech Ltd. v. Republic of Uzbekistan – Is Really No One Getting Punished?

On 4 October 2013, an ICSID tribunal rendered its decision in the investment treaty dispute between the Israeli company Metal-Tech Ltd. and Uzbekistan. In the award, the tribunal found that it lacked jurisdiction to hear the parties’ claims and counterclaims brought under the Israel-Uzbekistan BIT and Uzbek law due to corruption related to Metal-Tech’s investment in Uzbekistan. In particular, the tribunal found that payments of approximately USD 4 million made by Metal-Tech to several individuals, including an Uzbek government official and the brother of the then Prime Minister of Uzbekistan, while presented as remuneration for various consultancy services, in fact constituted corruption [...]

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