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The Futility Exception to The Exhaustion Requirement: Apotex v. United States

In its Award on Jurisdiction and Admissibility, a unanimous tribunal in Apotex, Inc. v. United States dismissed a Canadian manufacturer’s claims that the United States judiciary had violated NAFTA by mis-applying a regulatory time period.

Most of the reaction to Apotex has focused on the tribunal’s decision that the claimant’s activities in the United States—and in particular its submissions for regulatory approval—did not constitute an “investment” under NAFTA Article 1139. While the tribunal struggled with claimant’s assertion that the regulatory filings were actually treated as “property” as a technical matter, the Award essentially concluded that Apotex simply had no [...]

Book Review: Commentaries on Selected Model Investment Treaties (Chester Brown, editor, Oxford University Press, 2013)

In recent years, Oxford University Press has devoted considerable effort to enhancing its transnational law list. In doing so, it has added several titles addressing international arbitration and investor-State topics. Among its more recent offerings is Commentaries on Selected Model Investment Treaties (hereinafter “Commentaries”) edited by Dr. Chester Brown.

Commentaries is substantial. It comprises 895 pages and 18 detailed chapters; each chapter is separately authored and the authors follow a common format to provide their observations and analysis. The authors are well-credentialed persons from government, academia, and private practice. With the exception of the chapter on NAFTA, e [...]

The Emergence of a Consistent Case Law: How NAFTA Tribunals have Interpreted the Fair and Equitable Treatment Standard

Last week the hearing on jurisdiction and liability in an arbitration between Bilcon of Delaware et al. and the Government of Canada was streamed live on the website of the Permanent Court of Arbitration (‘PCA’). One of the most disputed issues between the parties in this case is the meaning and the scope of the obligation for NAFTA Parties to provide foreign investors with a fair and equitable (‘FET’) treatment. This post summarizes the most fundamental findings of NAFTA tribunals regarding Article 1105 in the last 20 years (see, Patrick Dumberry, The Fair and Equitable Treatment Standard: A Guide to NAFTA Case Law on Article 1105, Wolters Kluwer 2013).

At the outset, it should be h [...]

Brewing Storm over ISDR Clouds: Trans-Pacific Partnership Talks – Part II

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 [...]

Must we be so Redactionary?

Transparency of investment treaty arbitration is back on the radar this week as delegations convene in Vienna for the latest meeting of the UNCITRAL Working Group II on Arbitration and Conciliation.

While governments debate the scope and content of new transparency obligations, one issue that has received less attention is a sometimes-seen corollary of greater transparency: the redaction of confidential business information or other types of protected information from documents before they are published.

While I remain a proponent of mandatory transparency in investment treaty arbitration, I’m troubled by certain aspects of the redaction process – particularly the emerging practice in NA [...]

The Prospects for Amicus Submissions, Outside the ICSID Rules

Monday’s New York conference on “Arbitration with States and State Entities under the ICC Rules” got me thinking about the possibility of amicus submissions in investment cases before the ICC or other institutions beyond ICSID. A few musings:

Are amicus debates likely to arise in the ICC context? The answer is yes. Although most ICC cases involving States or State entities have arisen from contracts, a number already have alleged breach of investment treaties, and more presumably are to come. A recent ICC task force suggested that roughly 20% of BITs allow some possibility of using the ICC Rules, either by expressly providing that option or by allowing the parties to agree on an [...]

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