“And the day came when the risk to remain tight in a bud was more painful than the risk it took to blossom.” (Anaïs Nin) Introduction and background On 12 July 2017, CMS Hong Kong and the Hong Kong International Arbitration Centre (HKIAC) hosted the fourth joint lecture in their quarterly series focusing on the…

The U.S. Court of Appeals for the Fourth Circuit recently issued an en banc decision, in International Refugee Assistance Project IRAP v Trump, affirming the district court’s injunction against President Trump’s Executive Order temporarily suspending entry into the United States by individuals from six Muslim-majority countries. Although the case concerns the application of specialized U.S….

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…

In October 2016, the ICSID advised the Member States of the ICISD 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…

On March 14th the Investment Treaty Forum at The British Institute of International and Comparative Law hosted a panel of experts to discuss practical and legal aspects of investments protection in the context of territorial disputes. Territorial disputes sometimes lead to the annexation of the territory of one state by another, of which the annexation…

In early March 2017, the Singapore High Court released a judgment in which it considered an important question of enforcement of investor-state awards. In Josias Van Zyl v Kingdom of Lesotho [2017] SGHCR 2, AR Pereira was asked to decide whether an order to enforce a final award in a treaty dispute administered by the…

On 8 March 2017, the Romanian Parliament sent to the Romanian President for promulgation the Law allowing for the termination of the Bilateral Investment Treaties between Romania and other Member States of the European Union (“Intra-EU BITs”). This comes after Poland adopted a similar measure at the beginning of January 2017 and with the European…

Bosnia and Herzegovina (“BiH”) is generally perceived as a good emerging market for investment. The country is rich with natural resources and has a long tradition of industry with favorable and attractive locations and resources. Potential areas of investment include banking and finance, energy and mining, construction and IT (ICT) sector. The relevant national framework…

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…

Co-authored with: Oleg Temnikov, Wolf Theiss Background In a recent award issued in the case of CEAC Holdings Limited v. Montenegro (ARB/14/8, Award, 26 July 2016) the arbitral tribunal had to decide whether CEAC Holdings Limited (hereinafter: “CEAC”) was a protected investor within the meaning of the applicable Cyprus–Serbia and Montenegro BIT. Under Article 1…

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…

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…

YAI TALKS#, a new conversation series launched by the ITA Young Arbitrators Initiative (YAI) under the leadership of YAI chair Montserrat Manzano (Von Wobeser y Sierra, Mexico City) and vice chair Silvia Marchili (King & Spalding, Houston), kicked off on May 12 in Washington, D.C., with a debate on claims by dual nationals against countries…

As Mariel Dimsey has observed, a key challenge posed by investment treaties is that – at the point of ratification – they expose States to arbitrations of ‘as-yet-unknown scope and against as-yet-unknown claimants’. Gus van Harten and Martin Loughlin argue that this feature differentiates investment disputes from those heard in other fora, transforming investment disputes into something akin to ‘domestic judicial review of state conduct’….

“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….

It comes as no surprise to those familiar with investment treaty law to see the concept of legitimate expectations continuously refined by case law. One of the facets of legitimate expectations, which is most often the topic of intensive debate in the investment treaty arbitration arena, is the analysis of the extent to which representations…

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…

The controversial dispute between the Ecuadorian government and the multinational corporation Chevron arose from the operations undertaken by Texpet –a subsidiary of Texaco at that time- on the country’s Amazon region during the eighties. Texpet was the operator undertaking the exploration and exploitation of hydrocarbons in association with Petroecuador, formerly CEPE, the state-owned oil company…

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 University of Virginia’s Spring 2014 symposium focused on the topic of international development. One panel focused on the role of international politics in the context of international dispute settlement. With the mandate to examine elements related to both politics and development, I was asked to explore outcomes in investment treaty arbitration (ITA) as a…