scholarly journals Challenging Domestic Judgments Through Investment Arbitration: Implications for the Forced Labour Litigation in Korea?

2021 ◽  
pp. 1-29
Author(s):  
Vid PRISLAN
Keyword(s):  
Arbitral Tribunal ◽  
Investment Arbitration ◽  
Legal Implications ◽  
Civil Lawsuits ◽  
International Obligations ◽  
Forced Labour ◽  
Japanese Companies

Abstract This paper considers the international legal implications of certain civil lawsuits that recently resulted in Japanese companies being ordered to pay compensation to Korean victims of forced labour, focusing specifically on whether investor-state arbitration could provide a means of redress against judgments affecting those companies. After identifying the jurisdictional hurdles that those companies might face were they to challenge those judgments before an Arbitral Tribunal, this paper explores the most relevant treaty protection disciplines that could be relied upon in bringing such challenges, and discusses the remedies that a competent Arbitral Tribunal could prescribe were it to find that those judgments were not in conformity with Korea's international obligations. Building on existing jurisprudence, this paper shows that investment arbitration may provide a means for offsetting the adverse consequences of Korean forced labour litigation, but also highlights a number of difficulties that the Japanese companies would face in pursuing such an avenue.

Requirements for Amicus Curiae Participation in International Investment ArbitrationA Deconstruction of the Procedural Wall Erected in Joint ICSID Cases ARB/10/25 and ARB/10/15

2013 ◽  
Vol 12 (3) ◽  
pp. 365-390 ◽  
Author(s):  
Christian Schliemann
Keyword(s):  
International Law ◽  
International Investment ◽  
Recent Attempt ◽  
Arbitral Tribunal ◽  
Amicus Curiae ◽  
Legal Rules ◽  
Investment Arbitration ◽  
Legal Standard ◽  
Investment Law

Abstract The legal standard on amicus curiae participation in international investment arbitration has been forged by the judicial development of legal rules and, in parallel, the modification of normative sources, such as the ICSID Arbitration Rules. Current and future decisions by arbitral tribunals on the participation of amicus curiae in a given dispute must abide by this consolidated standard. In June 2012, the arbitral tribunal in Joint ICSID Cases No. ARB/10/15 and No. ARB/10/25 released a procedural order, rejecting an amicus petition. This Order contains various deviations from the applicable legal standard and severely restricts the options for amicus participation. The recent attempt to strengthen the legitimacy of international investment arbitration by allowing for greater amicus participation and the acknowledgement of the interdependence of investment law and other areas of international law is thereby put in peril.

Emergency Arbitration: Mere Innovation or Vast Improvement

2019 ◽  
Vol 35 (4) ◽  
pp. 441-472
Author(s):  
Rania Alnaber
Keyword(s):  
New York ◽  
Arbitral Tribunal ◽  
Commercial Arbitration ◽  
National Courts ◽  
Investment Arbitration ◽  
The Future ◽  
New York Convention ◽  
Interim Measures ◽  
Specific Concern

Abstract Effectiveness of emergency arbitration is a disputable question, which was touched by several commentators since it was first introduced in 2006. Concerns have been raised in relation to the enforceability of emergency reliefs under the New York Convention and the risk of concurrent jurisdiction between emergency arbitrators and national courts in granting interim measures prior to the constitution of the arbitral tribunal. A more specific concern is related to the suitability of introducing this mechanism, to investment arbitration. This article argues that adopting an international instrument for enforcing emergency reliefs will be the best solution. As for investment arbitration, emergency arbitrators are no less important in this type of arbitration than in commercial arbitration. However, certain features of emergency arbitration shall be tailored to meet the distinct nature of investment cases. Although certain amendments are needed to enhance the effectiveness of this relatively new mechanism, the future of emergency arbitrator is still optimistic. Therefore, to avoid any duplication of fora, courts are expected to respect emergency arbitrator's jurisdiction and only intervene when the latter is not capable of granting a relief.

scholarly journals eu Law Constraints on Intra-eu Investment Arbitration?

2017 ◽  
Vol 16 (1) ◽  
pp. 71-86 ◽  
Author(s):  
Eirik Bjorge
Keyword(s):  
European Union ◽  
International Law ◽  
Arbitral Tribunal ◽  
Eu Law ◽  
The European Union ◽  
Bilateral Investment Treaty ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Energy Charter Treaty ◽  
The Law

This article questions whether the law of the European Union (eu) can impose jurisdictional constraints on so-called intra-eu investment arbitration proceedings. Would an arbitral tribunal hearing an intra-eu case under either a bilateral investment treaty (bit) or under the Energy Charter Treaty (ect) have to declare itself incompetent to conduct the case proceedings owing to the operation of eu law? This article subjects that proposition to criticism, finding that, for a number of reasons, connected either with the drafting of the bit or the ect or the operation of general principles of international law, it does not withstand scrutiny. An arbitral tribunal seized of a treaty claim under a bit or the ect cannot rely on eu law to negate rights expressly granted under the instrument providing for its jurisdiction.

scholarly journals Emergency Measures of Protection in International Arbitration

2018 ◽  
Vol 18 (1) ◽  
pp. 155-177
Author(s):  
Monika Feigerlová
Keyword(s):  
Arbitral Tribunal ◽  
International Arbitration ◽  
Investment Arbitration ◽  
Key Aspects ◽  
Emergency Measures

Summary Numerous arbitration rules were amended over the last five years to include provisions on the so-called emergency arbitration measures. An emergency arbitrator is appointed before the constitution of a full arbitral tribunal and is empowered to grant an interim relief that the applicants could have historically obtained in these urgent situations from ordinary courts only. The article discusses key aspects and challenges of the new institute in the context of both international commercial and investment arbitration.

scholarly journals España ante el arbitraje internacional por los recortes a las energías renovables: una representación en tres actos, por ahora = Spain before the international arbitration for the cut to renewable energies: a representation in three acts, for now

2017 ◽  
Vol 9 (2) ◽  
pp. 666 ◽  
Author(s):  
Enrique Fernández Masiá
Keyword(s):  
Solar Power ◽  
Renewable Energies ◽  
Arbitral Tribunal ◽  
International Arbitration ◽  
Power Sector ◽  
The Third ◽  
Investment Arbitration ◽  
Fair And Equitable Treatment ◽  
Equitable Treatment ◽  
Legislative Measures

Resumen: El 4 de mayo de 2017 se hizo público el tercer laudo en relación con la saga de arbitrajes contra España por las medidas en el ámbito energético. Después de dos victorias de España, el tercer laudo en el caso Eiser, ha sido el primero donde el tribunal arbitral ha concedido una indemnización a los demandantes en relación con las medidas aplicadas que suponen un recorte de los incentivos y beneficios ofrecidos para promover la inversión en el sector de energía solar fotovoltaica. La interpretación del tratamiento justo y equitativo en estos casos y, especialmente en el caso Eiser, puede tener un gran impacto en los arbitrajes que todavía están pendientes contra España por las mismas medidas.Palabras clave: arbitraje de inversiones, energías renovables, medidas legislativas, expropiación indirecta, tratamiento justo y equitativo.Abstract: On May 4, 2017 the third final award on the Spanish energy arbitration saga was unveiled. After two wins for Spain, the recent award in Eiser case has been the first where the arbitral tribunal has granted damages for the claimants, in relation to the measures applied to cut the incentives and benefits offered to promote investment in the photovoltaic solar power sector. The intepretation of the fair and equitable treatment in these cases, specially in the Eiser case, can have a great impact in the remaining arbitrations against Spain for the same measures.Keywords: investment arbitration, renewable energies, legislative measures, indirect expropriation, fair and equitable treatment.

scholarly journals Cortec Mining Kenya Limited, Cortec (Pty) Limited, and Stirling Capital Limited v. Republic of Kenya

2019 ◽  
Vol 113 (3) ◽  
pp. 574-581
Author(s):  
Lorenzo Cotula ◽  
James T. Gathii
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
Environmental Law ◽  
International Investment ◽  
Arbitral Tribunal ◽  
Public International Law ◽  
Bilateral Investment Treaty ◽  
Investment Treaty ◽  
Legal Implications ◽  
Mining Project

In Cortec v. Kenya, an investor-state arbitral tribunal established under a bilateral investment treaty (BIT) held it lacked jurisdiction to hear a dispute concerning a mining project that the tribunal found did not comply with domestic environmental law. The award raises significant issues of public international law, including how questions of investor compliance are considered in investor-state dispute settlement and the legal implications of investor noncompliance. The issues resonate with wider debates about balancing investor rights and obligations in the international investment regime.

scholarly journals ‘The Making of an Investment’ in the Context of the Temporal Scope of Investment Treaty Protection. Does the Indian Metals & Ferro Alloys Ltd v. Republic of Indonesia Award of 29 March 2019 Constitute a Breakthrough?

2021 ◽  
Vol 10 (1) ◽  
pp. 9-42
Author(s):  
Michał Pyka
Keyword(s):  
Legal Framework ◽  
International Investment ◽  
Arbitral Tribunal ◽  
Host State ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
The Future ◽  
Legitimate Expectations ◽  
Investment Treaties ◽  
Legal Character

This contribution deals with the question of the legal character of investment treaty claims, brought to international investment arbitration, when alleged breaches of investment treaty obligations towards an investor occurred after the entry into force of an investment treaty but before the making of an investment by an investor. The analysis of the existing legal framework allows for the conclusion that the said acts of a host state are generally excluded from the scope of investment treaty protection. An arbitral tribunal neither has jurisdiction over these acts nor is it allowed to apply substantive treaty provisions thereto. This conclusion stems from the principle of intertemporal law and numerous provisions of investment treaties constituting the implementation or modification of this principle. Nevertheless, an arbitral tribunal is not fully deprived of the possibility of considering the acts of a host state preceding the making of an investmentand undertaken before any activity of the future investor took place. It can consider them as evidence of the intent of a host state, acts creating legitimate expectations of an investor or acts constituting elements of what is termed a continuing act.

Supervised Injection Facilities and International Law

2003 ◽  
Vol 33 (3) ◽  
pp. 539-578 ◽  
Author(s):  
Ian Malkin ◽  
Richard Elliott ◽  
Rowan McRae
Keyword(s):  
Drug Users ◽  
Health It ◽  
Health Crisis ◽  
Public Health Crisis ◽  
Legal Obligations ◽  
Legal Implications ◽  
International Obligations ◽  
Supervised Injection ◽  
Supervised Injection Facilities ◽  
The Right

The ongoing public health crisis associated with injection drug use highlights the failure of prohibitionist policies. In contrast, harm reduction approaches aim to protect and promote the health of drug users. Supervised injection facilities (SIFs) are one important component of this approach. This article considers the international legal implications of establishing SIFs. It argues that implementing trials of SIFs is an appropriate measure that states should take pursuant to their international legal obligations to realize progressively the right of their nationals to the highest attainable standard of health. It argues that international drug control treaties do not prevent such measures, as is commonly claimed. The authors conclude that successful trials in Europe and Australia should be emulated elsewhere, in accordance with states' international obligations.

Eilschiedsrichterverfahren in der Investitionsschiedsgerichtsbarkeit aus rechtlicher und ökonomischer Perspektive

2021 ◽  
Author(s):  
Anja Carola Götze
Keyword(s):  
Economic Analysis ◽  
Conflicts Of Interest ◽  
Arbitral Tribunal ◽  
Economic Analysis Of Law ◽  
Investment Arbitration ◽  
Legal Problems

The introduction of the emergency arbitrator fills the procedural gap which existed in terms of interim relief prior to the formation of the arbitral tribunal. This special interim relief is a novelty in investment arbitration proceedings. This book examines the role of the emergency arbitrator and discusses the related legal problems based on previous investor-state arbitration proceedings involving emergency arbitrators. The author develops the proposed solutions on the basis of the methods of the economic analysis of law. This method illustrates the dynamic conflicts of interest in investment matters and offers strategies to improve the effectiveness of the emergency arbitrator.

Sign in / Sign up

Export Citation Format

Share Document