From Lena Goldfields to Crystallex: A Proposal For Collective Financing Of Sovereign Award Debt

2021 ◽  
Vol 37 (2) ◽  
pp. 549-576
Author(s):  
Ruth Teitelbaum
Keyword(s):  
Foreign Investors ◽  
Arbitral Award ◽  
Investment Treaty ◽  
The Future ◽  
Investment Treaty Arbitration

Abstract The Lena Goldfields payment story must be recognized for upholding a critical principle: the notion that an arbitral award debt is a collective problem between sovereigns. The stories of payment in Lena Goldfields and Crystallex lead to the following inquiry: why should today’s system of investment treaty arbitration, based upon treaties providing for reciprocal obligations between sovereigns, treat the payment of arbitral awards as a one-sided obligation of only one sovereign, to be borne alone? If sovereigns are able to enter into treaties providing for mutual protections and benefits, including the mutual consent to arbitrate future investment disputes with foreign investors, why should they not also be able to collectively insure the future payment of awards owed to foreign investors in the future?

Adamakopoulos and Others v. Cyprus: “Massive” Problems Concerning a Mass Claims Proceeding in Investment Treaty Arbitration?

2021 ◽  
pp. 1-8
Author(s):  
Keer HUANG
Keyword(s):  
Investment Treaty ◽  
Majority Decision ◽  
The Future ◽  
Investment Treaty Arbitration

Abstract The Adamakopoulos and Others v. Cyprus Decision is noteworthy because it provides a blueprint for mass claims proceedings in investment treaty arbitration, justifying the possibility of addressing investment claims en masse in the future. This case comment reviews the background to the dispute, addresses the majority decision on the mass claims, and comments on the Tribunal's reasoning regarding the non-requirement of additional consent to mass claims arbitration, the homogeneity of the claims, and procedural flexibility.

11 Other Forms of Arbitration and the Future of Arbitration in Korea

2017 ◽  
Author(s):  
Kim Joongi
Keyword(s):  
South Korea ◽  
Dispute Resolution ◽  
The South ◽  
Commercial Arbitration ◽  
Resolution Process ◽  
Investment Treaty ◽  
Dispute Resolution Process ◽  
The Future ◽  
North And South ◽  
Investment Treaty Arbitration

This chapter looks at other forms of arbitration and reflects on the future of arbitration in Korea. In addition to commercial arbitration, other forms of arbitration, particularly investment treaty arbitration, are becoming increasingly important for Korean parties, practitioners, and researchers. Recent efforts to establish a dispute-resolution process through a similar framework between North and South Korea are also discussed. The chapter shows the joint contributions of both sides toward the South–North arbitration efforts. Finally, the chapter notes that while in many regards the future of arbitration in Korea looks bright, despite this outlook, there are still challenges yet to overcome.

Making International Legal Persons in Investment Treaty Arbitration: State-owned Enterprises along the Person/Thing Distinction

2017 ◽  
Vol 18 (5) ◽  
pp. 1183-1228 ◽  
Author(s):  
Mikko Rajavuori
Keyword(s):  
Political Philosophy ◽  
International Law ◽  
Legal Person ◽  
Foreign Investors ◽  
Legal Personality ◽  
Investment Treaty ◽  
Investment Law ◽  
New Perspective ◽  
International Legal Personality ◽  
Investment Treaty Arbitration

Investment treaty arbitration (ITA) has emerged as a space where the international legal personality of states and foreign investors is continuously created, maintained, and redefined. Focusing on treatment of state-owned enterprises (SOEs), this Article juxtaposes investment law's doctrinal foundations with Roberto Esposito's political philosophy to explore the dynamics, porosity, and ramifications of international legal personality in ITA. Skeptical of gradual conceptualizations of legal personality, this Article frames investment law in terms of Esposito's person/thing distinction and argues for SOEs to form a liminal category that exposes malleability of legal doctrines when ITA tribunals make or break international legal persons. Ultimately, the ITA cases seem to open a distinct dispositif of a SOE that both delineates the exact normative demarcation of the state as international legal person and creates pockets of indistinguishability and politics at its borders—often to the detriment of the Global South. This insight provides a new perspective on the creation of international legal persons in ITA and international law more generally but, at the same time, also adds a new dimension to Esposito's overarching framework resting on the asymmetric relationship between persons and things.

System-Building in Investment Treaty Arbitration and Lawmaking

2011 ◽  
Vol 12 (5) ◽  
pp. 1083-1110 ◽  
Author(s):  
Stephan W. Schill
Keyword(s):  
Free Trade ◽  
Dispute Settlement ◽  
State Level ◽  
Trade Agreement ◽  
International Investment ◽  
Foreign Investors ◽  
Investment Protection ◽  
The North ◽  
Investment Treaty ◽  
Investment Treaty Arbitration

Since the late 1990s investment treaty arbitration has developed into one of the most vibrant fields of international dispute settlement with now almost 400 known cases. It involves claims by foreign investors against host States for breach of obligations assumed under one of the more than 2700 bilateral investment treaties (BITs), under the numerous investment chapters in bilateral or regional free trade agreements, including the North American Free Trade Agreement, or under sectoral treaties such as the Energy Charter Treaty. All of these instruments offer comprehensive protection to foreign investors by setting down principles of substantive investment protection, including national and most-favored-nation treatment, fair and equitable treatment, full protection and security, protection against expropriation without compensation, and free capital transfer. They also allow investors to enforce these standards in arbitral proceedings directly against the host State, most commonly under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention). Investment treaty arbitration thereby not only empowers foreign investors under international law, but also introduces investment treaty tribunals as novel actors into the arena of international investment law. Although arbitration has been a classic form of dispute settlement on the State-to-State level, including for the settlement of investment-related disputes, modern investment treaty tribunals have wider jurisdiction and are more removed from State control than any of their predecessors.

scholarly journals Bilateral Investment Treaty Negotiations between India and U.S: Problems and Prospects

2016 ◽  
Vol 4 (1) ◽  
Author(s):  
Rajesh Kumar
Keyword(s):  
Prime Minister ◽  
Foreign Investors ◽  
Bilateral Investment Treaty ◽  
Investment Treaty ◽  
Treaty Negotiations ◽  
Technology Control ◽  
The Relationship ◽  
Control Regime ◽  
Australian Company ◽  
Investment Treaty Arbitration

<p><em>Relationship between U.S. and India is at the best phase, especially after former unequivocal support in NSG (Nuclear Supply Group) and helping inclusion in MTCR (Missile Technology Control Regime). The relationship between two oldest and biggest democracies has matured under the headship of Mr. Barak Obama as President and Mr. Nardendra Modi as prime minister. In the recent visit of Indian prime minister, the warm gesture shown by U.S. congress members have further cemented the strength of tie up between two nations. However, despite great chemistry between two nation and its leaders from last many years, both have failed to enter into Bilateral Investment Treaty. India is having Bilateral Investment treaty with more than 80 countries including U.K. and Russia, of which 72 treaties are operational. <a title="" href="file:///C:/Users/SPub/Desktop/July%202016%20IRA%20Issues/IRAJEMS/IRAJEMS1.docx#_ftn1">[1]</a>  U.S. is having Bilateral Investment treaties with more than 46  countries including Russia and Bangladesh.<a title="" href="file:///C:/Users/SPub/Desktop/July%202016%20IRA%20Issues/IRAJEMS/IRAJEMS1.docx#_ftn2">[2]</a> Since 2008, the two countries have been engaged in sporadic discussions to conclude the Investment treaty. Negotiations on its wording, based on each country’s revised model treaty texts, will begin soon. Both the leaders Indian Prime Minister Narendra Modi and U.S President Barack Obama affirmed their mutual commitment to facilitating increased bilateral investment flows and fostering an open and predictable climate for investment many a times , But consensus has not been reached till today on certain term and conditions.   In the absence of BIT , the rights of investors of both the countries are at the stake. Further, MFN or nationality treatment clause cannot be invoked or granted in the event of any regulatory or other action. Obligations imposed by BIT to protect interest of foreign investors are absent. Further, after losing its first Investment Treaty Arbitration (ITA) claim in 2012 against White Industries, an Australian company and pending 17 cases, India has recently adopted new BIT in 2015 . It also has reflections of pending claims of Vodafone and other cases involving Intellectual Property Rights( Hereinafter refereed as IPR) and the cases of compulsory licences.   </em></p><div><br clear="all" /><hr align="left" size="1" width="33%" /><div><p><em><a title="" href="file:///C:/Users/SPub/Desktop/July%202016%20IRA%20Issues/IRAJEMS/IRAJEMS1.docx#_ftnref1">[1]</a> Details Avaialble at <a href="http://www.finmin.nic.in/bipa/bipa_index.asp">http://www.finmin.nic.in/bipa/bipa_index.asp</a>.</em></p></div><div><p><em><a title="" href="file:///C:/Users/SPub/Desktop/July%202016%20IRA%20Issues/IRAJEMS/IRAJEMS1.docx#_ftnref2">[2]</a> Details Avialable at <a href="http://www.state.gov/e/eb/ifd/bit/117402.htm">http://www.state.gov/e/eb/ifd/bit/117402.htm</a>.</em></p></div></div>

Exploring the prospects of host-state counterclaims in corruption disputes

2020 ◽  
Vol 36 (4) ◽  
pp. 583-600
Author(s):  
Chitransh Vijayvergia ◽  
Pavan Belmannu
Keyword(s):  
Bilateral Investment Treaties ◽  
International Arbitration ◽  
Public Officials ◽  
Foreign Investors ◽  
The Public ◽  
Host State ◽  
Investment Treaty ◽  
Investment Treaties ◽  
Investment Treaty Arbitration

Abstract While the regime of investment treaty arbitration has evolved manifold over the decades, has the position of the host-states as a Respondent improved? The authors argue that it has not. Bilateral Investment Treaties (hereinafter BIT(s)) are still asymmetrical in nature where the states are obliged to protect the rights of the foreign investors but are not provided with any remedy against the corrupt activities of the investors. While tribunals have denied jurisdiction over the investors’ claims tainted with corruption, they have provided states with no consequent remedy against such investors. Consequently, the states have to first bear the loss of a failed investment in its territory and then pay for the exorbitant costs of international arbitration as well. Where scholars are arguing for attribution of liability of corrupt activities of the public officials to the states, the authors here raise an important question of what if the liability cannot be attributed to the states due to lack of apparent authority? Should the states be then allowed to move forward from the jurisdictional stage to raise counterclaims to seek damages for the loss caused by the investors? In this article, the authors explore these questions and present arguments in favour of the inclusion of corruption-based counterclaims.

Sign in / Sign up

Export Citation Format

Share Document