Investment Arbitration

Artificial Intelligence, HKIAC Rules, Investment Arbitration, NAFTA, SCC Rules, Singapore, Summary Judgment, Summary procedure, Third party funding, TPPA

(Freshfields Bruckhaus Deringer LLP)/ /2 Comments
YSIAC

2017 was a busy year for international arbitration. Taking a walk down memory lane, we saw new players and new industries entering the game, institutions adopting new rules, and we have some new challenges to tackle. This note summarizes some highlights and low lights in international arbitration during 2017 from across the globe. Happy Holidays…

Human Rights, International arbitration, Investment Arbitration, ISDS

(University of Notre Dame)/ /Leave a comment
Institute for Transnational Arbitration (ITA)

The first publicly available decision issued under the international arbitration process provided for under the Accord on Fire and Building Safety in Bangladesh (‘Bangladesh Accord’) (note that Roger Alford previously summarized the Bangladesh Accord’s dispute resolution clause here) was issued through the 4 September 2017 Decision on Admissibility Objection in Industrial Global Union and Uni…

Achmea, European Commission, European Law, European Union, Intra-EU BITs, Investment agreements, Investment Arbitration, Investor-State arbitration

, (K&L Gates LLP) and (Queritius)/ /Leave a comment

The Opinion delivered on 19 September 2017 by Advocate General Wathelet in the case C-284/16 Achmea has already been widely commented on in the international arbitration community. The views are either critical or approving, but so far, they have mostly been focused on whether a particular legal point made by the Advocate General was right…

Arbitration, Energy, Energy Charter Treaty, Intra-EU BITs, Investment Arbitration, Investment protection

(Bottega Di Bella)/ /Leave a comment

Currently, several dozen arbitral claims have been lodged by investors from an EU Member-State against another EU Member-State based on the Energy Charter Treaty (ECT). These so-called intra-EU ECT-based arbitrations seem to be increasing, despite attempts by the European Commission to halt them. So far, neither the Respondent-States nor the Commission (as amicus curiae) have…

Arbitration, Investment Arbitration, ISDS, Third party funding

(Durham Law School) and (Roschier Attorneys, Ltd.)/ /1 Comment

Third-party funding remains a hot topic in arbitration, which is understandable considering its complexity and that its accompanying issues often have major implications for arbitral procedure. This fall, the ICCA-Queen Mary Task Force on third-party funding in international arbitration released its “draft,” touching upon a number of contemporary issues vis-á-vis third-party funding, all of which…

Arbitration, Investment agreements, Investment Arbitration, Investment protection, Treaty

(Herbert Smith Freehills)/ /1 Comment
Herbert Smith Freehills

The international economic order is today bound together through a network of bilateral (and multilateral) investment treaties which provide investors with a variety of protections. Such Bilateral investment treaties (“BITs”) are a relatively young species dating back to 1959’s Pakistan-Federal Republic of Germany BIT. While the exact content of BITs varies by agreement, most contain…

Annulment, BIT, ICSID, ICSID Arbitration, ICSID Convention, Investment, Investment Arbitration, Investment protection, Investor, Investor-State arbitration, ISDS, Zimbabwe

(NL-Investmentconsulting)/ /Leave a comment

Recently, it was reported that after 14 years since Zimbabwe had illegally evicted Dutch farmers from their farms, it finally agreed to pay the damages awarded under the ICSID award, which dates back in 2009. In the Funnekotter et al case, the arbitral tribunal rejected Zimbabwe’s necessity defence, which was based on the claimed need…

Arbitration, Eastern Europe, Fair and Equitable Treatment, Investment, Investment Arbitration, Investment protection, Investor, Investor-State arbitration, Switzerland

(Bottega Di Bella)/ /6 Comments

In the 2000s, mortgages in Swiss Franc (CHF) were very popular among consumers in Central, Eastern and Southeastern Europe for the acquisition of both private and commercial properties, as the CHF was a stable and reliable currency and offered lower interest rates than loans in Euro or in local currencies. When on 15 January 2015…

International Commercial Arbitration, Investment Arbitration, Podcast

(Arbitration Chambers) and (Mannheimer Swartling)/ /1 Comment

Information dissemination is the flavor of the decade. Processing information with our busy lives has become harder than ever and companies are hard at work to ensure knowledge reaches as many people around the globe as possible. These efforts are not without their threats. The rise of what might be called the “fake news” movement…

BIT, Cambodia, Investment, Investment Arbitration, Investor-State arbitration, ISDS

(Sciences Po)/ /1 Comment

The year 1993 saw a significant political transition in Cambodia through the adoption of democratic principles and free market economy. Since then, many legal reforms have been made in order to attract foreign direct investment, and one of which is providing a legal framework for protecting the investment. To date, the Kingdom has signed a…

Albania, Arbitration, Courts, Criminal law and arbitration, England, ICSID, ICSID Arbitration, ICSID Convention, Investment, Investment Arbitration, Investment protection, Investor, Investor-State arbitration, Provisional measures

(Doughty Street Chambers)/ /Leave a comment

Since the first application for provisional measures suspending criminal proceedings in Tokios Tokelés v. Ukraine (ICSID Case No. ARB/02/18, Order No. 3, 18 January 2005), the number of applications before ICSID tribunals for these types of measures has steadily increased. Recent applications have been widely commented on in the arbitration community, including in this blog….

Arbitration, International arbitration, Investment Arbitration, Singapore

(Norton Rose Fulbright)/ /Leave a comment
YSIAC

In a 172-page judgment, the Singapore High Court in Kingdom of Lesotho v Swissbourgh Diamond Mines (Pty) Limited [2017] SGHC 195 (Lesotho), set aside an investor-state arbitration award rendered against Lesotho after an extensive review of international investment jurisprudence. This is the second investor-state matter that has confronted the Singapore courts following Sanum Investments Ltd…

Arbitration, Investment Arbitration, Myanmar

(New York Bar Attorney )/ /Leave a comment

According to the Doing Business Reports, from 2014 and 2016 Myanmar ameliorated the possibility to enter into business in the country by increasing its rank from 177 to 171. However, this evolution seems to be frozen as shown by the 2017 Report in terms of amelioration. Nonetheless, Myanmar’s government is ready to take a next…

Arbitration, Counterclaims, Environment, Investment agreements, Investment Arbitration, Investor-State arbitration

(Twenty Essex) and (King's College London)/ /Leave a comment

The potential clash between protection of investors under investment treaties and protection of the environment has emerged in a number of recent arbitrations. More than 60 investment disputes filed since 2012 have had some environmental component. Amongst them, there have been several cases in which States have sought to enforce environmental law against investors in…

Arbitration, Energy, Energy Charter Treaty, European Commission, Fair and Equitable Treatment, Investment Arbitration, Italy, Legitimate Expectations

(Omnia Strategy LLP)/ /Leave a comment

Introduction The investment solar energy saga triggered by the regulatory reforms in the renewable energy undertaken by Spain and Italy is likely to be the new Black Swan in the investment arbitration world, reaching the importance and controversy of the Argentinian crisis of 2001. In addition, the question whether the ISDS system has learnt the…

Arbitration, BIT, Investment Arbitration, Poland

(Kancelaria Adwokacka Adwokat Marcin Orecki)/ /Leave a comment

After a few declarations of intention to terminate BITs (see my previous post), Poland put words into actions. On 18 July 2017, the Polish Government submitted to the Sejm (the lower house of Polish Parliament) a draft law (“Draft Law”, available in Polish here) which empowers the Polish President to unilaterally terminate the Agreement on…

Investment Arbitration, Investment protection, ISDS, Spain

(HENDEL IDR)/ /Leave a comment

The below continues and concludes a two-part post about the Spanish renewable energy cases which have been concluded to date, in particular, the apparently contradictory Eiser and Isolux awards, the former of which was decided in May 2017 and the latter, which (although decided in July 2016) only became public in June 2017.  Part I…

Investment Arbitration, Investment protection, ISDS, Spain

(HENDEL IDR)/ /1 Comment

In furtherance of European and national policy directives, Spain enacted in the early years of this century a series of decrees to regulate the production of electricity from renewable sources and provide incentives to producers. In particular, by Royal Decree 661/2007, a generous, production-based remuneration subsidy in the form of a feed-in-tariff (FIT) was put…

Arbitration, Brexit, European Law, European Union, Investment, Investment agreements, Investment Arbitration, Investment protection, UK

(Notre Dame Law School)/ /Leave a comment

On May 30, 2017, Volterra Fietta and the University of Notre Dame hosted a debate of whether foreign investors can sue the United Kingdom for a hard Brexit. The recorded video is now available for viewing. Markus Burgstaller and I presented the case that foreign investors may have viable claims against the UK, while Jeremy…

Energy, Energy Charter Treaty, ICSID, ICSID Arbitration, ICSID Convention, Investment, Investment Arbitration, Investment protection, Investor

(Bocconi University)/ /Leave a comment

The ICSID Tribunal in the case Eskosol S.p.A. in Liquidazione v. Italian Republic (ICSID Case No.ARB/15/50) has recently issued a Decision on Respondent’s Application under Rule 41(5) of the ICSID Rules of Procedure for Arbitration Proceedings (Arbitration Rules). In 2015, Eskosol filed a Request for Arbitration based on Italy’s claimed violation of the Energy Charter…

Arbitration, Damages, Discounted Cash Flow, Investment Arbitration

, (FTI Consulting, Inc.)/ /Leave a comment
ArbitralWomen

Quantum experts often rely on the Discounted Cash Flow (DCF) approach to assess losses. The DCF approach is one of the most widely-used and accepted valuation methods, thanks in large part to its flexibility and the fact that it can be tailored to accommodate a wide array of assumptions. The DCF approach is a method…

Investment Arbitration, ISDS, Judicial Economy, Minimum Standard of Treatment, NAFTA, WTO

(US Department of State)/ /1 Comment

The recent mention of “judicial economy” in the award in Eli Lilly and Company v. Government of Canada provides an opportunity to consider judicial economy in investor-state arbitration more generally. In its award of March 16, 2017, the Eli Lilly tribunal determined that certain judicial interpretations of Canada’s patent law did not violate the substantive…

Arbitration Institutions and Rules, ICSID, ICSID Arbitration, ICSID Convention, Investment, Investment agreements, Investment Arbitration, Investment protection, Investor, ISDS

(Stockholm University)/ /2 Comments

In October 2016, the ICSID advised the Member States of the ICSID Convention that it was beginning the fourth amendment process since the enactment of the definitive ICSID Arbitration Rules in 1967. The first amendment to the Rules took place in 1984 and mainly referred to the possibility to resort to national courts for provisional…

Arbitration, China, ICSID, Investment Arbitration, Rule 41(5)

(The George Washington University Law School)/ /Leave a comment

On March 9, 2017, a three-person ICSID Tribunal rendered an Award in Ansung Housing Co., Ltd. v. People’s Republic of China.  The case marks the second time where China appears as a Respondent before an ICSID tribunal.  The first case was brought by a Malaysian company in May 2011, but that case was discontinued on…