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A Need for Preventive Investment Protection?

It is not unusual that a foreign investor is put in a situation where the investment has not been infringed yet and no damage has been caused, but an infringement is very likely to happen. The investor is then often left without any available domestic recourse, which is particularly true as regards general legislative measures. In this context recent developments in Poland call anew the question of preventive investment protection and the pre-emptive use of bilateral investment treaties (“BIT”).

On 5 August 2015 the lower chamber of the Polish Parliament adopted a draft law concerning the restructuring of consumer mortgage loans denominated in foreign currency. In practice, restructurin [...]

TTIP: The French Proposal For A Permanent European Court for Investment Arbitration

The views expressed in this article are those of the author alone and should not be regarded as representative of, or binding upon ArbitralWomen.

On 2 June 2015, the French Minister of Foreign Trade, Matthias Fekl, submitted to the European Commission a proposal regarding the Investor-State dispute settlement (ISDS) mechanism included in the project for a Transatlantic Trade Investment Partnership between the US and the EU (TTIP). The French Proposal is one further addition to the hot debate on the issue.

The French proposal purports to address the main causes of public mistrust towards investor-State arbitration: the alleged restriction of States’ general regulatory power, conflicting awa [...]

The ICSID Recent Decision on Greek PSI: Can Sovereign Bonds Be Protected as Investments?

A ruling issued on the 9th April 2015 by the International Centre for Settlement of Investment Disputes (ICSID) rejected a case brought by a Slovak bank and its shareholders against the 2012 PSI bond ‘haircut’ in Greece via the activation of Collective Action Clauses (CACs) (the award is available here).

Poštová banka (a Slovakian bank) and one of its shareholders (Istrokapital SE) filed an international arbitration claim against Greece for the Private Sector Involvement Program (PSI), invoking the claim that Greece adopted measures in breach of international treaties, depriving the value of their investments in Greek bonds back in 2012.

Concerning the factual background of the case, it is [...]

What’s New with the Energy Charter Treaty?

No doubt that the last three years have been quite busy for the Energy Charter Treaty (ECT) and for the Energy Charter Conference.

The number of investor-state arbitration cases under Article 26 of the ECT doubled in this time span, going from thirty known cases to sixty-eight (as reported on the website of the Energy Charter Secretariat). Thanks to the “solar claims” against Spain and the Czech Republic. The “solar claims” relate to a series of measures taken by these states which retrospectively reduced the tariffs in the solar energy sector (the “feed-in tariffs”) and withdrew other incentives and benefits. Other states which adopted similar measures, such as Italy (already f [...]

Investing in Cryptocurrencies under the Existing Investment Arbitration Regime

Over the past few years, the business community has discovered a new form of investment: this new type of capital formation is broadly known as investment in cryptocurrencies. The capital interest in these investments involves large financial institutions such as investment banks, rating services, assets management and consultancy agencies. According to the CoinDesk, the short list of large financial institutions involved in cryptocurrencies’ include: UBS, JPMorgan, Goldman Sachs, Fitch Ratings, Fortress Investment (Pantera) and Silicon Valley. Τhe total amount of investments in the last two years exceeded hundreds of millions of USD. However, despite this growing interest, the legal natu [...]

Investment Arbitration and Legal Protection Under European Law – Frankfurt Court Strengthens the Efficiency of Arbitration Agreements

The Higher Regional Court Frankfurt (OLG Frankfurt) has recently strengthened the efficiency of parties’ wills embodied in arbitration agreements. In a crucial decision (OLG Frankfurt am Main, 26 Sch 3/13, Ruling, 18 December 2014), the judges have added clarity to the practical problem of how to resolve friction between an increasingly dense net of treaty obligations of member states of the European Union and international investment protection. Specifically, the court looked at arbitration agreements and their compatibility with the legal protection requirements envisaged by European law. The answers provided by the OLG Frankfurt are both, a convincing step towards greater clarity in the r [...]

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