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Transparency as a Global Norm in International Investment Law

Transparency is one of the hot topics in international law. With governance functions increasingly shifting from the domestic to the international level, transparency is demanded, as Andrea Bianchi and Anne Peters show in their new seminal study, in order to compensate for the lack of a full-fledged international system of checks and balances. Transparency promises a more accountable, more democratic and hence more legitimate system of global governance. International investment law cannot escape from this general drift. As I noted in my Editorial for the latest issue of the Journal or World Investment and Trade (JWIT), secrecy in treaty negotiations and confidentiality in dispute settlement [...]

Precision and Legitimacy in International Arbitration: Empirical Insights from ICCA

This past April, the International Council for Commercial Arbitration (ICCA) held its prestigious biennial conference in Miami, with more than 1,000 people in attendance. Our research team received unprecedented access to collect demographic information and administer a survey. The results offer an unprecedented window into the “invisible college” of the international commercial and investment arbitration community. As data about the world of international commercial arbitration is notoriously difficult to obtain given doctrinal obligations of confidentiality, the data offers a particularly critical baseline for assessment and comparison.

Our research sought to use empirical methods to [...]

The Futility Exception to The Exhaustion Requirement: Apotex v. United States

In its Award on Jurisdiction and Admissibility, a unanimous tribunal in Apotex, Inc. v. United States dismissed a Canadian manufacturer’s claims that the United States judiciary had violated NAFTA by mis-applying a regulatory time period.

Most of the reaction to Apotex has focused on the tribunal’s decision that the claimant’s activities in the United States—and in particular its submissions for regulatory approval—did not constitute an “investment” under NAFTA Article 1139. While the tribunal struggled with claimant’s assertion that the regulatory filings were actually treated as “property” as a technical matter, the Award essentially concluded that Apotex simply had no [...]

Indonesia’s Termination of the Netherlands–Indonesia BIT: Broader Implications in the Asia-Pacific?

The value of investor-state dispute settlement (ISDS) procedures has lately been questioned by a number of countries. The Australian Government’s 2011 Trade Policy Statement – stating that Australia would not agree to ISDS in its treaties – caused much debate and controversy. In part, Australia’s policy was motivated by the Philip Morris claim, instituted in response to legislation requiring the plain packaging of cigarettes. Since then, a change of government in 2013 has meant that Australia has retracted considerably from its strict position. The current Government has indicated it will consider the inclusion of ISDS on a case-by-case basis. While the Government agreed to the inclu [...]

British Columbia Signals To The International Community That It Is An Enforcement-Friendly Jurisdiction

By Henri Alvarez and Alexandra Mitretodis, Fasken Martineau DuMoulin LLP

In Sociedade-de-fomento Industrial Private Limited v. Pakistan Steel Mills Corporation, decided on June 2, 2014, the Court of Appeal of British Columbia set the test in international arbitration for enforcing foreign arbitral awards by freezing assets. The decision confirms that a party with limited association to British Columbia may enforce an arbitral award by Mareva injunction without an onus to first establish that enforcement elsewhere was not possible. In considering when to grant an injunction, the court may consider the relative ease or difficulty of enforcement abroad, among other factors. Delay, inconvenie [...]

Towards A Revised Threshold for Arbitrators’ Challenges Under ICSID?

The ICSID Convention threshold for arbitrators’ challenges, upholding challenges only if arbitrators exhibit a manifest lack of the qualities required to sit as arbitrators (Art. 57 ICSID Convention), has in the past been criticized as being too strict.

Recently, however, few decisions, discussed in this post, seem to show that the ICSID “manifest” threshold is being interpreted differently, and more in line with the more common “appearance of bias” standard.

In Blue Bank v. Venezuela, decided in November 2013, the Chairman of the World Bank Administrative Council (Chairman), Dr. Jim Yong Kim, decided and accepted the proposal to disqualify Claimant’s appointee, José María Alon [...]

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