On 30 November, Australia’s Joint Standing Committee on Treaties (JSCOT) released its Report 165 on its inquiry into the Trans-Pacific Partnership Agreement (TPP). JSCOT is a 16-member parliamentary committee tasked with advising the Australian parliament on ratification of treaties. This article presents an overview and discussion of the Report’s findings on ISDS, the most common…

Much Ado About India’s Protectionist Model BIT The last week of November 2016 was an eventful and rather paradoxical week for India. While India and Brazil successfully concluded negotiations for a new Bilateral Investment Treaty (“BIT”), the India-Netherlands BIT expired. India has spent the past year refurbishing its investment agreements. According to UNCTAD, India is…

Part I of this two-part blog post summarized the recent judgment of the Singapore Court of Appeal (“SGCA” or the “Court”) in Sanum Investments Ltd. v Government of the Lao People’s Democratic Republic (“Sanum v Laos”). This Part II provides some comments on that judgment and its significance, including its impact on future Singapore court…

On 29 September 2016, the Singapore Court of Appeal (“SGCA” or the “Court”) released its much-anticipated judgment in Sanum Investments Ltd. v Government of the Lao People’s Democratic Republic (“Sanum v Laos”). In a carefully reasoned decision, Singapore’s apex court reversed a decision of the Singapore High Court, which had previously held that an UNCITRAL…

More recent generations of investment treaties tend to include explicit provisions requiring claimants in investor-State arbitrations to submit waivers that – depending on the actual terminology used in these waiver provisions – generally seek to bar them from submitting their claims to other forums, such as through litigation before domestic courts or parallel international proceedings….

Gramercy Funds Management LLC, a U.S.-based hedge fund (“Gramercy”), recently filed a notice of arbitration against the Republic of Peru pursuant to the investment chapter of the U.S.-Peru Trade Promotion Agreement (“U.S.-Peru TPA”), seeking USD 1.6 billion in damages. Although Peru announced that it filed an initial response to Gramercy’s notice in early July, the…

Just like a century ago – and throughout their entire history – the Balkans remain a zone of structural instability. In this respect, the ‘end of history’ has not come around to the fringes of Europe, as Francis Fukuyama once optimistically expected. Therefore, although the Balkan area is an essentially coherent cultural sub-space, while still…

In October 2015, during an official visit to the United States, President Joko “Jokowi” Widodo, announced that Indonesia intended to join the Trans-Pacific Partnership (TPP). Jokowi’s plan immediately ran into political opposition at home, including from within the ranks of his own Indonesian Democratic Party of Struggle (PDI-P). The Government, however, appears determined to follow…

More than one year has passed since the U.S. and Cuba started to rekindle their relationship and restore economic ties. The Cuban government is opening the country to foreign investment, the U.S. is relaxing the sanctions imposed on Cuba, and both countries reopened their embassies after half century of frosty relations. Despite U.S. sanctions, Cuba…

by Nahila Cortes, American University Washington College of Law Much is being said about the Trans-Pacific Partnership Agreement (“TPP”), the landmark free trade agreement signed by twelve States accounting for 40% of the world trade. Chapter 9, the investment chapter, is an important provision which applies to investors (i.e. a national or company of a…

“ISDS” (short for “investor-state dispute settlement”) was a less-known acronym some years back. Now, it has been given an increasingly bad name, no doubt fuelled by Vattenfall’s claim against Germany following the shutting down of its nuclear plants after the 2011 Fukushima disaster, tobacco giant Philip Morris’ high profile claims arising from Australia’s plain-labelling laws,…

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….

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 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)…

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…

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…

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…

Germany’s position on international investment law and investor-State arbitration is attracting increasing attention since the signing of the Canada-EU Comprehensive Economic and Trade Agreement (CETA) in September 2014 has been deferred, inter alia, because of opposition from Sigmar Gabriel, Germany’s Federal Minister for Economic Affairs and Energy. Is Germany, the country that not only has…

and Mitchell Moranis, WilmerHale As discussed recently in this forum, the Vienna Convention on the Law of Treaties is the prevailing mechanism for the interpretation of investment treaties (Interpreting Investment Treaties, Roberto Castro de Figueiredo, 21 Oct. 2014). The Vienna Convention, however, was adopted in May 1969. According to the ICSID Database of Bilateral Investment…

One of the fundamental issues of investment cases – apparently more frivolous than the strictly legal battles – takes the form of debates over the applicable compensation standard. Historically speaking, the problem was mainly put forth for breaches of Bilateral Investment Treaties that referred to expropriatory behaviors of signatory states. Therefore, if this specific type…

The Inaugural Conference of the European Federation for Investment Law and Arbitration (EFILA) took place on Friday, 23 January 2015, in the Senate House of the Queen Mary University of London. 160 participants ranging from academics, arbitrators, arbitration institutions, companies, lawyers to NGOs reviewed a full day long the EU’s first 5 years of European…

Although a bilateral investment treaty (“BIT”) arbitration and an application made before the European Court of Human Rights (“the Court”) could, at first glance, present opposite objectives, investors alleging a violation of their rights by a State may be inclined to make use of both remedies. As it will be elaborated below, the case law…

That was the assessment of Constantine Partasides QC, founding partner of Three Crowns, during his keynote address to the joint ITA-IEL conference. According to Mr. Partasides, there is a developing consensus among states that it is acceptable, and even virtuous, to challenge investor-state arbitration as an infringement on the rights of the public to pass…

In one of the very rare decisions issued by courts in the Arab world applying the provisions of the Unified Agreement for the Investment of Arab Capital in the Arab States (the “UAIAC”), the Cairo Court of Appeal has revived in its decision dated February 5, 2014, the principle of finality of arbitration awards, by…