When does a most-favoured-nation (MFN) treatment clause in an investment treaty confer jurisdiction on an investor-state arbitration tribunal? Most readers will be aware that in a series of decisions investment treaty tribunals have given very different responses to this question. On the one hand, a line of decisions suggests that, unless there is a express…

We at Kluwer Arbitration blog are most pleased to welcome Andrew Newcombe as our newest contributor. Andrew teaches commercial, international economic and arbitration law at the Faculty of Law, University of Victoria, Canada. His research and writing focuses primarily on investment treaty law and arbitration. In 2004, he established investment treaty arbitration, a resource website…

Germany has introduced an amendment to its Foreign Trade and Payments Act. It is a direct response to increased activities and acquisitions by sovereign wealth funds (SWFs), as they are often perceived to pursue economic as well as political aims. Despite this origin, the legislation does not only apply to SWFs. Instead, it allows the…

Tribunals in investment arbitrations currently impose a fairly consistent set of restrictions to the submissions of amici curiae in proceedings before them, such as short page limits, no access to the arbitral record, etc. The question is whether there are instances where these restrictions need to be tempered.

In a post last month, I offered a few thoughts on the future of moral damages in investment treaty arbitration. One arbitration where I thought we might see an award of moral damages is a case pitting a group of Dutch farmers (Funnekotter, et.al.) against the Government of Zimbabwe. By way of update, I wanted…

ICSID arbitration proceedings against Germany (Vattenfall AB, Vattenfall Europe AG, Vattenfall Europe Generation AG & Co. KG v. Federal Republic of Germany – ICSID On April 17, 2009, the government-owned Swedish energy company Vattenfall initiated Case No. ARB/09/6, reported in IA Reporter, April 2nd, 2009 (Vol. 2, No. 6)). The dispute concerns the construction by…

In a post last month, I queried whether not-for-profit organizations could use bilateral investment treaties to challenge abusive treatment by host states. My guess (and that of a colleague with whom I’ve written on this topic) is that such organizations would have little difficulty qualifying as investors under most BITs – and that at least…

In the early 1990’s, then World Bank Senior Vice President and General Counsel, Ibrahim Shihata, and then ICSID Legal Advisor, Antonio Parra, observed that there “was hardly any case law” on the full protection and security standard. In so doing, Messrs. Shihata and Parra also posited that “[a]rbitrators in future cases will undoubtedly have the…

One of the more intriguing investment arbitration decisions rendered in 2008 has to be the final award in Desert Line Properties (DLP) v. Yemen. In their February 2008 award, a tribunal of three arbitrators held that Yemen denied fair and equitable treatment to an Omani construction company. The claimant turned to ICSID after Yemeni authorities…

What could be more basic? Arbitrations begin with each side naming an arbitrator. References are occasionally made to “the fundamental right” to name one’s arbitrator. But there is no such right. Moreover, if it existed, it would certainly not be fundamental. The original concept that legitimates arbitration is that of an arbitrator in whom both…

American Bar Association’s International Law Section Criticizes the ABA Dispute Resolution Section’s Subcommittee Draft on Arbitrator Disclosure Guidelines It has been interesting to watch the strong reaction to the draft disclosure guidelines and checklist for arbitrators proposed by the Disclosure Subcommittee of the Arbitration Committee of the ABA’s Dispute Resolution Section. Over the last two…

In recent weeks, there has been widespread condemnation of the Sudanese government’s decision to expel 13 international aid agencies operating in Darfur. The expulsions came, of course, as retaliation for the international arrest warrant issued against Sudanese President Omar Al-Baashir. Most members of the UN Security Council have denounced the expulsions and warned that they…

This week, many are talking about the long-awaited European Court of Justice judgments which have held Sweden and Austria in breach of their European Community Law obligations. (A third case against Finland has been delayed slightly, but will likely be resolved in the same way by the ECJ). According to the ECJ, Austria and Sweden…

On August 14, 2008, while the armed conflict over Abkhazia and South Ossetia between Georgia and Russia was raging, Georgia filed a request for the indication of provisional measures with the International Court of Justice (ICJ) in The Hague in order to preserve its rights under the International Convention on the Elimination of All Forms…

In light of interest in the international arbitration community concerning investment treaty cases against Argentina since the 2001 economic crisis, we thought it could be useful to share Freshfields’ working collation. We caution that this is based only on public records and press reports. Corrections are welcome. According to our data, 46 treaty cases have…

As reported several months ago – and confirmed last week – the International Centre for Settlement of Investment Disputes (ICSID) has a new Secretary-General. Meg Kinnear comes to the post after working for nearly two and a half decades as a lawyer for the Canadian Government. Of that time, the last decade has been spent…

I spent yesterday afternoon with a group of Latin American business journalists at Columbia University as part of an ongoing training program for developing country journalists. After an hour of sharing my geek-like interest in tracking obscure international business arbitrations, we spent some time talking about reporting methods. One topic of particular interest was the…

Ten years ago virtually all international arbitration was in a black box. The awards were accessible to the parties and virtually no one else. One had vague impressions about the quality of arbitration generally and individual arbitrators in particular. But there was no objective data from which to judge these impressions. Investment arbitration changed all…

Rex has recently installed himself as the benevolent dictator of a resource-rich country where many live in poverty. He took power from a government he accuses of having distributed national wealth in a grossly unfair manner. He proclaims a policy of redistributive justice, and enjoys passionate popularity among the vast disadvantaged segments of the population….

Global Arbitration Review recently reported that the August 27, 2008 Award in Plama Consortium Limited v. Republic of Bulgaria (ICSID Case No. ARB/03/24) was selected as the Best Award and the Most Surprising Award of 2008 in a survey of participants in the international arbitration on line discussion forum OGEMID. The 120-day period to apply…

As someone who straddles the worlds of specialized and mainstream media, I can appreciate how difficult it is to report on international arbitration for different audiences. It’s much easier writing for readers who are familiar with investment treaties, and the concept of investor-state arbitration – not to mention the alphabet soup of acronyms which abound…

This month, the British Institute of International and Comparative Law (BIICL) is hosting a roundtable discussion on the global financial crisis and international investment arbitration. By many accounts, the present global economic nosedive seems to be giving rise to an up-tick in some forms of international arbitration and litigation. Financial institutions are suing one another…

The American Society of International Law is pleased to join a number of organizations and institutions contributing to this on-line discussion of current issues in international arbitration. We have long provided a forum for the international arbitration community to come together and share ideas-in print, at our meetings, or on line-and we consider this new…

What exactly is a foreign investor? To the layperson, it may seem self-evident: a national of one country who invests in another country. But in an era when foreign investors often enjoy much more favourable legal and financial benefits than their domestic counterparts, it seems that everyone is scrambling to be classified as a foreigner…