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Notes on the Persistent Latin American Countries’ Attitude Towards Investment Arbitration and ICSID

Investment arbitration is a crucial and sensitive dispute-resolution method, notably because the treatment given to foreign investment matters may materially affect the economic and social realities of a country or region, particularly those in development. In the last decade, however, as already reported and addressed in this blog by, among many others, Vanessa Giraud and Carlos González-Bueno, countries in Latin America — a true hot-spot for foreign investment1 — have been either ignoring, denouncing or resisting the International Centre for Settlement of Investment Disputes (“ICSID”), the dispute-resolution framework for investment protection enacted under the Washington Convent [...]

“White Industries” and State Responsibility: Lesser-Known Facts about the Case as Discussed during the 2014 ICCA Young Arbitration Practitioners Conference

and Sapna Jhangiani, Clyde & Co. and Joseph P. Matthews J.D., University of Miami School of Law
for Young Arbitration Practitioners

It has been some time since the White Industries Australia Limited v Republic of India judgment was rendered against India in 2011. However, there remain several interesting aspects of the case still not widely known by the international arbitration community. For example, it is generally considered that this case was the first Investment Treaty Claim (ITA) against India. In fact, there was another ITA claim against India previously – the Dabhol case – which was related to a power project in State of Maharashtra, but was settled in 1996. This post seeks to set [...]

Rule 41(5) of the ICSID Arbitration Rules: The Sleeping Beauty of the ICSID system

and Oleg Temnikov

The recent decision on preliminary objections, dated 17 January 2014, against the application for annulment in Elsamex S.A. v. Honduras (ARB/09/4) brought renewed interest in the procedure for summary dismissal of unmeritorious claims under Rule 41(5) of the ICSID Arbitration Rules.

The present post examines shortly this procedure as well as the implications of the above mentioned decision.

I. Characteristics
In response to criticism that no procedure exists for the expeditious dismissal of patently unmeritorious claims, in 2006, the ICSID adopted Arbitration Rule 41(5). This procedure is intended to strike a balance between the need to save time and costs and, [...]

Investment Arbitration in the Nuclear Energy Sector: A Brief Note on Investors and Investments

Every now and then the arbitration society witnesses the filing of investor-state disputes in fields previously ‘unharmed’ by the spotlight of investment adjudication. Perhaps the most recent example is the ‘hydraulically fractured’ shale gas dispute against Canada (see Lone Pine v. Canada). In a similar manner, the Vattenfall II dispute over Germany’s nuclear phase-out has turned the spotlight to disputes in the nuclear energy sector. This post provides a brief note to some of the issues that are relevant when dealing with investor-state disputes in the nuclear energy industry and are associated with the potential investors and the nexus between their disputes and this industry.


Is Investment Arbitration in Latin America in Crisis?

Over the years Latin American countries have played an increasingly relevant role in the International Centre for Settlement of Investment Disputes (the “ICSID”), with the highest proportion – 27% – of all cases handled by the Centre. Despite the high percentage these same countries have been increasingly expressing their dislike about having to resolve their disputes through the ICSID, notwithstanding the fact that in certain Latin American countries this hostility has steadily diminished through the adoption of protective Arbitration Laws or the signing of Bilateral Investment Treaties (BITs).

The reason for this resentment is mainly because some of these governments associate the ICS [...]

Are Repsol’s Rights Under The Repsol-Argentina Settlement Agreement An ‘Investment’ Under the Argentina-Spain BIT?

On February 27, 2014, Repsol S.A., Repsol Capital S.L. and Repsol Butano S.A. (collectively, ‘Repsol’), entered into a settlement agreement with Argentina, whereby Argentina agreed to pay Repsol $5 billion in USD denominated bonds as compensation for the expropriation of Repsol’s fifty-one percent shareholding in YPF S.A. and YPF Gas (the ‘Settlement Agreement’). Under the terms of the settlement, Repsol agreed that upon closing, it would withdraw any and all claims against Argentina, YPF S.A. and YPF Gas, including but not limited to Repsol’s pending ICSID arbitration against Argentina (currently suspended pursuant to the parties’ agreement).

The question arises: What happens [...]

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