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Making a Muddle of Moral Damages

Let’s get this straight: When awarded to persons, including foreign investors, moral damages are compensatory in nature. They are not discretionary. They are not symbolic. They are not exemplary. They are not punitive. Rather, as the commentary to the ILC Draft Articles 36 and 37 on State Responsibility notes, “[c]ompensable personal injury encompasses not only associated material losses . . . but also non-material damage . . . (sometimes, although not universally referred to as ‘moral damage’).” Put differently, “[m]aterial and moral damage resulting from an internationally wrongful act will normally be financially assessable and hence covered by the remedy of compensation.” A [...]

Favor Arbitrandum and the Supreme Court of Canada: More Red Flags

The pronouncements of the highest-ranking court are key indicators of a legal system’s stance vis-à-vis arbitration and other private means of dispute resolution. Over the past decade, the Supreme Court of Canada has dealt with arbitration in a number of cases, and it initially did so in a manner that revealed a very supportive attitude. Indeed, the earlier decisions—Desputeaux, 2003 SCC 21, GreCon, 2005 SCC 46, and Dell, 2007 SCC 34—adopted a resolutely pro-arbitration approach on such key issues as the reach of the doctrine of non-arbitrability, the impact of international arbitration agreements on the jurisdiction of domestic courts, and the legal effectiveness of arbitration claus [...]

Who Are the Protagonists in Investment Treaty Arbitration?

Procedural orders rarely become the subject of blog posts, much less the impetus for concerted action among states anxious to control the strategic space on which investment treaty arbitrations unfold. However, a series of orders in Detroit International Bridge Company v. Canada generated controversy when the tribunal steadfastly excluded representatives of the United States from attending hearings on jurisdiction. Viewed from one perspective, the incident reflects an element of farce. But it also provides a trenchant and timely reminder of continuing differences regarding the structure of investment treaty arbitration, and the roles assigned to disputing parties, tribunals, and non-disp [...]

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 [...]

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