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Conflating Politics and Development?

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 function of these twin variables. My recent article, published in the Virginia Journal of International Law, focuses on this intersection.

Recognizing that debates about ITA are reaching the mainstream in venues including The Economist, Wall Street Journal, New York Times, dueling editorials in the Washington Post, and even Joh [...]

A Question of Democracy: The German Debate on International Investment Law.

Germany’s position on international investment law and investor-State arbitration is attracting increasing attention since the signing of the Canada-EU Comprehensive Economic and Trade Agreement (CETA) in September 2014 has been deferred, inter alia, because of opposition from Sigmar Gabriel, Germany’s Federal Minister for Economic Affairs and Energy. Is Germany, the country that not only has concluded the first bilateral investment treaty (BIT) in 1959 but also has the densest network of BITs worldwide, as some fear, joining the coalition of critics in fundamentally reversing its international investment policy?

Mounting Criticism of International Investment Law in Germany in Context

A [...]

Introducing Litigating International Investment Disputes – A Practitioner’s Guide

I am grateful for the opportunity to introduce to the readers of this blog my new edited book: Litigating International Investment Disputes – A Practitioner’s Guide.

International investment arbitration is increasingly complex and specialized, and this book seeks to guide new and experienced practitioners through the workings and details of international investment arbitration proceedings – from whether and how to initiate arbitral proceedings to the unique features of selecting arbitrators, how to draft written submissions and conduct oral proceedings, and issues related to the enforcement of an award and available post-award remedies.

Indeed, recent decisions have underscored the impor [...]

A Recent Survey of Experienced U.S. Arbitrators Highlights Areas for Further International Study and Discussion

In 2013, an extensive survey of experienced commercial arbitrators in the U.S. was conducted by the Straus Institute for Dispute Resolution with the cooperation of the College of Commercial Arbitrators (CCA), an organization of more than two hundred of the most experienced arbitrators in the U.S. The Survey provides considerable new data on arbitrators’ experiences, practices and perspectives.

Of course, canvasses of personal attitudes and experiences must be regarded with appropriate circumspection. Respondents may exaggerate levels of experience and skew answers to embrace norms perceived as “correct.” Lack of time or multi-tasking may undercut the accuracy or thoughtfulness of [...]

Too Much Information or When Information Relating to Arbitration Obscures rather than Clarifies the Landscape

The following thoughts are written aware of the fact that a blog is personal and informational and not a substitute for an academic article. In this spirit the thoughts expressed here are, while fundamental in many respects, also preliminary and tentative in some others.

The quest for more transparency in international (commercial and investment) arbitration captures the attention of novices and veteran insiders and outsiders of this area of dispute resolution. In this respect also the calls for publication of arbitral awards is not entirely new (Julian Lew, Klaus-Peter Berger and Martin Hunter have written on the issue since the late 1970s). The debate about transparency does not automatic [...]

Consent in Multiparty Investment Arbitration – The Most Recent Installment

On November 17, 2014, the tribunal in Alemanni v. Argentine Republic issued its long-anticipated decision on jurisdiction and admissibility. Alemanni is the third in a series of large-scale arbitrations arising out of Argentina’s default on its sovereign debt, and the most recent decision bears some resemblance to the preliminary awards rendered in the other two matters (Abaclat v. Argentine Republic and Ambiente Ufficio v. Argentine Republic). However, Alemanni puts its own distinctive stamp on the question of mass and multiparty claims in the investment context.

The facts in Alemanni are substantially similar to those in Abaclat and Ambiente Ufficio and therefore need not be discus [...]

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