Investment obligations and investor-State arbitration provisions normally have been negotiated under bilateral investment treaties (BITs), or, more recently, in the larger context of free trade agreements (FTAs). For investment provisions, the movement from BITs to FTAs recently has taken an additional, significant step: the negotiation of such provisions in the even larger context of mega-regional…

Are international arbitrators biased in favor of the nominating party? The answer is: probably yes! This is in part the result of what some scholars refer to as selection and affiliation effects. Selection effect: Because the parties nominate the arbitrators, they can choose party-appointed arbitrators with the maximum predisposition towards their case. The litigant can…

The line between third-party funders and law firms is blurring. Originally, there were only two traditional types of third-party funding arrangements. In the first type, the third-party funder makes an agreement to finance the legal expenses of the claimant or respondent in a case in exchange for a portion of the claimant’s awarded amount, if…

One of the perceived advantages of arbitration is that it allows parties to select one or more decision makers (arbitrators) with a level of technical or scientific expertise and professional experience higher than that of the average judge. Arbitration has always been welcomed as a fitting alternative to traditional litigation, where the judges tend to…

The Academic Council of the Institute for Transnational Arbitration (ITA) is pleased to announce the launch of a new online resource for international arbitration and dispute resolution instructors: International Dispute Resolution Resources for Legal Educators. The Legal Educators Resources site is designed to gather, classify, and disseminate syllabi, notes, exercises, exams, and other original teaching…

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…

“When Justice Delayed Would be Justice Denied: Emergency Arbitrators and Interim Measures in International Arbitration” was the subject of the 28th Annual Workshop of the Institute for Transnational Arbitration (ITA), which took place on 16 June 2016 in Dallas, Texas. Under the leadership of ITA’s Chair, Abby Cohen Smutny (White & Case), and the conference…

The mounting global preoccupation with mediation, reflected in a growing array of institutions, programs, laws and regulations; an international “evangelical” movement; and mounting impetus for an international convention promoting the recognition and enforcement of mediated settlement agreements; should be accompanied by collective reflection, dialogue and discernment regarding present trends. These were the themes of my…

On March 30, ITA and ASIL co-hosted their annual meeting in Washington, DC, and this year’s theme was “A Spotlight on Ethics in International Arbitration: Advocates, Arbitrators and Awards.” One of the panels explored the question of where best to house authority for determining the ethical obligations of parties and their attorneys. I moderated the…

This post initiates a series of posts highlighting key cases published in ITA Arbitration Report, a monthly subscription service provided by the ITA Board of Reporters and available for free at KluwerArbitration.com. The three issues published during the 1st Quarter of 2016 contain more than 60 cases from different jurisdictions worldwide. The selection made for…

The facts in Getma v. Guinea case seem familiar enough, but the facts leading to annulment of the award involve a wholly unexpected plot twist—a showdown between an African arbitral institution and the arbitral tribunal over the tribunal’s fees. When the annulment decision in Getma v. Guinea first came out, it received considerable attention, including…

Historically, there has been no binding uniform code of ethics governing the conduct of counsel appearing before international arbitral tribunals or dictating how issues of counsel conduct are to be resolved in international arbitration. Recently, however, efforts have been made to fill this void by international organizations and arbitral institutions. For example, in 2013, the…

It has become customary for governments and other organisations to issue “Qs and As” to dispel myths about trade agreements. They usually contain categorical statements made to correct the record and reassure the concerned. The following ten “Qs and As” would likely not be issued by the EU Commission, as too many answers to the…

International investment law and investor-State dispute settlement (ISDS) are at a historic juncture as the United States and the European Union (EU) have started to address the content and contours of the investment chapter in the Transatlantic Trade and Investment Partnership (TTIP) in the latest negotiation round that took place in Brussels the last week…

Most arbitration agreements in the international realm require arbitrators to produce a “reasoned” or “fully reasoned” award. However, relatively little has been written on why such awards are necessary and what constitutes a reasoned award in a legal regime that includes elements of both the common and civil law. On one level, the question of…

The 3rd Annual Joint Conference on International Energy Arbitration, co-hosted by the Institute for Transnational Arbitration (ITA), the Institute for Energy Law (IEL), and the International Court of Arbitration of the International Chamber of Commerce (ICC), took place on January 14-15, 2016, in Houston, Texas. Under the guidance of conference co-chairs C. Mark Baker (Norton…

A July 2015 decision of the Superior Court of Justice of Madrid (Tribunal Superior de Justicia), the competent court to decide on the setting aside of an award when the seat of the arbitration is Madrid, declared non-arbitrable a controversy between two multinational Spanish operators in the natural gas sector. The dispute arose over the…

Challenges of arbitrators seem to have become increasingly common in international investment arbitral proceedings, yet they also seem to be seldom successful. Challenges and Recusals of Judges and Arbitrators in International Courts and Tribunals, a new edited volume by Chiara Giorgetti, analyses arbitrators and judges’ challenges and addresses some fundamental, related questions: What does the…

The issue of transparency is hardly a new topic in legal scholarship addressing international arbitration. Last year, in an important contribution to this blog, Loukas A. Mistelis broke with the conventional wisdom that investor-state dispute settlement, or ISDS, is in need of court-like transparency, arguing that extending court-like transparency to arbitration “would not benefit the…

In May this year some seventy-five states and institutions adopted (of which sixty-five signed) the International Energy Charter (IEC) in The Hague ministerial conference to herald a new age of global energy co-operation. The Charter is a political declaration by states and it modernises its predecessor the European Energy Charter (1991) – the foundation of…

Given the existence of thousands of international investment agreements, the international investment law regime has been described as “complex and confusing,” “highly fragmented,” and “characterised by overlaps and incoherence”. Two key developments, however, are contributing to the harmonization of that regime. First, a set of major agreements is being negotiated by many of the world’s…

Third-party funding is a controversial, dynamic, and evolving phenomenon in international arbitration. Proponents and opponents of third-party funding debate whether the practice will make a positive or negative impact on the worldwide system of dispute resolution. Both sides of the debate make predictions regarding the effect of third-party funders through the cases that they finance….

The 27th Annual Workshop of the Institute for Transnational Arbitration (“ITA”), which took place on June 17-18 in Dallas, Texas, examined  “Subconscious Influences in International Arbitration”.  The Workshop was organized by co-chairs José Astigarraga of Astigarraga Davis (Miami), Professor Margaret Moses of Loyola University Chicago School of Law (Chicago) and Luke Sobota of Three Crowns…