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Clyde & Co.

Would Reference to the Decisions of Investment Treaty Tribunals be of Assistance in the Interpretation of Political Risk Insurance Policies?

Readers of this blog are likely to be familiar with the existence of Bilateral Investment Treaties (“BITs”) and the wealth of arbitral awards made publicly available through the International Centre for the Settlement of Investment Disputes (“ICSID”). Given the publicity afforded to proceedings under BITs, or multilateral investment treaties such as NAFTA, one might be led to believe that recourse to investment treaty arbitration is the sole remedy for a seemingly wronged investor. This is incorrect. While it is true that recompense for a State’s breach of its treaty obligations on account of a failure to provide full protection and security to the investor, or for treatment that was not con [...]

To Forfeit or not to Forfeit? – Enforceability of Forfeiture Clauses in Oil and Gas Joint Operating Agreements (JOA)

By Ben Knowles and Khaled Moyeed at Clyde & Co LLP

A recent arbitration award has highlighted the question of the enforceability of forfeiture provisions in oil and gas JOAs. The effect of such provisions is that a defaulting party forfeits its participating interest (“PI“) in a project on account of a default, such as a failure to pay a cash call. We look at some of the practical considerations for parties to existing JOAs and those entering into new JOAs, as well as their advisers.

Background

In December 2013, an ICC tribunal handed down an award in an arbitration between RSM Production Corporation (“RSM”) as the claimants and Victoria Oil and Gas (“VOG”) and Rodeo Development Limited (“R [...]

Potential Investor-State Dispute Settlement Provisions in Trans-Pacific Partnership Agreement – A Change in Policy for Australia?

By Beth Cubitt and Tom French

The proposed Trans-Pacific Partnership Agreement (TPPA) – a multi-lateral agreement proposed between a number of countries, currently including Australia, Canada, Japan, Malaysia, Mexico, Peru, the United States and Vietnam (although it is hoped to be an open platform welcoming other countries to participate) – is currently the subject of much debate. TPPA countries will potentially account for approximately 39% of the world’s GDP, with Australia’s portion of trade representing AUD215 million. By 2025, the TPPA is expected to account for USD233 billion in trade per year, and is said to set the “economic architecture” for the region.
But will the TPPA contain i [...]

Enforcement in China – What the Cases Show

and Matthew Lam, Partner, Clyde & Co

As announced recently on this blog Chinese Court Decision Summaries on Arbitration, edited by WunschARB, were recently published by Kluwer Arbitration. The case summaries are a welcome addition to the Kluwer Arbitration database, particularly given the paucity of caselaw analysis currently available in this area, and the editors’ efforts for benefit of the wider arbitration community are much appreciated. WunschARB comment on some of the trends – both positive and negative – which are discernible from the cases on enforcement, notwithstanding that there is no system of binding precedent in PRC. In this blog, we explore further some of the trends app [...]

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