International Financial Disputes

2015 ◽  
Keyword(s):  
Financial Crisis ◽  
Dispute Resolution ◽  
Expert Witness ◽  
Financial Instruments ◽  
Applicable Law ◽  
Financial Products ◽  
Growth Area ◽  
Fair And Equitable Treatment ◽  
Specialist Knowledge ◽  
Equitable Treatment

This book provides specialist work on the arbitration of international financial disputes. The work covers commercial and investment arbitrations and considers the merits of and relationship between the various types of dispute resolution (mediation, arbitration, and litigation). International arbitration is a growth area and financial disputes have been a consequence of the financial crisis. The need for more specialist knowledge during the conduct of disputes involving complex financial instruments has become particularly apparent in recent years. This book explains the various financial products including debt and equity instruments, currencies, commodities, derivatives, and Islamic instruments and provides guidance on how to draft arbitration clauses with these products in mind. In the part on theories of liability, the issues of applicable law, expropriation, discrimination, fair and equitable treatment, and umbrella clauses are discussed. There are separate chapters on remedies and choice of law, in addition to the more procedural aspects of enforcement and expert witness. The interplay between mediation and arbitration is analysed and explained.

Gavazzi and Gavazzi v. Romania

ICSID Reports ◽  
2021 ◽  
Vol 19 ◽  
pp. 728-748
Keyword(s):  
Public Policy ◽  
Sufficient Evidence ◽  
Debt Restructuring ◽  
Content Type ◽  
Applicable Law ◽  
Fair And Equitable Treatment ◽  
Municipal Law ◽  
Bank Accounts ◽  
Equitable Treatment ◽  
Arbitration Award

728Jurisdiction — Investment — Shares — ICSID Convention, Article 25 — Salini test — Municipal law — Whether domestic formalities on investment registration were relevant to jurisdiction — Whether the purchase of shares satisfied the criteria of contribution, duration, risk and economic developmentJurisdiction — Investment — Claims to money — Arbitration award — ICSID Convention, Article 25 — Whether an arbitration award was a claim to money and thus a covered investmentJurisdiction — Time-bar — Applicable law — Whether time limitations under municipal law were relevant to jurisdictionCounterclaim — Contract — Jurisdiction — ICSID Convention, Article 42 — ICSID Convention, Article 46 — Applicable law — Whether the BIT permitted free-standing counterclaims based on breach of contract — Whether the applicable law of the contractual counterclaim was relevant to jurisdictionAdmissibility — Res judicata — Issue estoppel — Whether a related contractual arbitration and judicial review of the award under Romanian law precluded claims regarding breach of the BITFair and equitable treatment — Debt restructuring — Freezing bank accounts — Whether the State’s failure to restructure the acquired company’s debts on agreed terms and its acts and omissions in relation to the acquired company’s bank accounts breached the standard of fair and equitable treatment — Whether the breaches of fair and equitable treatment caused the bankruptcy of the acquired companyExpropriation — Debt restructuring — Contract — Whether the State’s failure to restructure the acquired company’s debts on agreed terms was a measure having similar effect to expropriation without compensation — Whether the claimants were entitled to suspend their agreed additional investments in the acquired companyFair and equitable treatment — Denial of justice — Public policy — Whether the State failed to provide effective means of asserting claims and enforcing rights — Whether a wrong decision was a denial of justice in breach of international law — Whether the judicial annulment of a commercial arbitration award on grounds of public policy was discriminatory or in bad faithRemedies — Damages — Valuation method — Evidence — Equitable principles — Whether the acquired company was a going concern — Whether it was appropriate to use past cash flow in valuation — Whether there was sufficient evidence to use an unlevered income approach to valuation — Whether quantum of damages could be determined according to equitable objective 729principles – Whether any reduction should be made for contributory negligence — Whether moral damages were appropriateRemedies — Interest — Whether it was appropriate to award compound interest

scholarly journals National Courts as Actors in Investment Arbitration

2021 ◽  
pp. 37-56
Author(s):  
Aniruddha Rajput
Keyword(s):  
Effective Means ◽  
International Courts ◽  
Applicable Law ◽  
The Road ◽  
National Courts ◽  
Investment Arbitration ◽  
Fair And Equitable Treatment ◽  
Equitable Treatment ◽  
The Relationship

AbstractNational courts are actors in investment arbitration since they influence the functioning of investment arbitration and are themselves in turn influenced by investment arbitration. The influence of national courts on investment arbitration is larger than the influence of other international courts and tribunals, since national law is part of the applicable law in investment arbitration and national courts are authorised to interpret and apply national law. National courts influence investment arbitration by competing for jurisdiction through the exhaustion of local remedies, umbrella clauses, and the fork-in-the-road rule. National courts facilitate investment arbitration by enforcing awards and at the same time disrupt it when rejecting enforcement or issuing anti-arbitration injunctions. Investment tribunals can restrain national courts by issuing anti-suit injunctions. Above all, they can review the decisions of national courts on grounds of denial of justice, fair and equitable treatment, the effective means test, and indirect expropriation. The the relationship between national courts and investment tribunals is such that the later have the last word, although the role of national courts as actors is certainly noteworthy.

Introductory Note

2017 ◽  
Author(s):  
August Reinisch
Keyword(s):  
Ad Hoc ◽  
Treatment Standard ◽  
Fair And Equitable Treatment ◽  
Introductory Note ◽  
Equitable Treatment

In 2015, the jurisprudence of International Centre for Settlement of Investment Disputes (ICSID) tribunals and ad hoc committees largely followed established lines. However, the awards on jurisdiction in the Poštová banka and the Ping An cases evidenced very restrictive approaches to what is required in order to uphold jurisdiction over ICSID claims. On the substance of claims, the tribunals in Tidewater and in Quiborax reaffirmed the legality requirements of expropriations, a string of cases clarified the contours of the fair and equitable treatment standard, while the ad hoc committees in the Daimler and the Kılıç cases continued to diverge on the scope of most-favoured nation (MFN) clauses.

Enkev Beheer BV (of the Netherlands) v. Republic of Poland

ICSID Reports ◽  
2021 ◽  
Vol 19 ◽  
pp. 630-648
Keyword(s):  
Due Process ◽  
The State ◽  
Third Party ◽  
Waiting Period ◽  
Content Type ◽  
Fair And Equitable Treatment ◽  
Just Compensation ◽  
Default Rules ◽  
Equitable Treatment ◽  
Almost All

630Procedure — Addition of a party — Conditional application — UNCITRAL Rules, Article 22 — UNCITRAL Rules, Article 17 — Whether the UNCITRAL Rules or lex loci arbitri allowed for applications to be made conditional on a tribunal’s future decision — Whether the application was consistent with the State’s procedural rights — Whether the amendment to a claim under Article 22 of the UNCITRAL Rules allowed for the addition of a third party as claimantJurisdiction — Investment — Shares — Whether an investor’s shares and rights derived from those shares were protected investments under the BITJurisdiction — Investment — Assets of subsidiary — Whether profits, goodwill or know-how of a local subsidiary constituted investments of the investor protected by the BITJurisdiction — Consent — Cooling-off period — Premature claims — Whether the investor had communicated its own claims rather than those of its local subsidiary — Whether the investor’s failure to comply with a waiting period of six months under the BIT required a tribunal to deny jurisdiction or admissibility — Whether the negotiation of a local subsidiary’s dispute in good faith was relevant to jurisdiction over a foreign investor’s claimsInterpretation — Cooling-off period — VCLT, Article 31 — Object and purpose — Whether the object and purpose of the BIT required a tribunal not to adopt a strict or formalistic interpretation of the waiting period of six monthsRemedies — Declaratory award — Interpretation — Just compensation — Whether the tribunal had jurisdiction under the BIT to make a declaratory award on the interpretation and application of the term “just compensation”Jurisdiction — Dispute — Whether the tribunal had jurisdiction under the BIT to advise the parties of an imminent disputeExpropriation — Direct deprivation — Shares — Rights derived from shares — Whether the State directly deprived the investor of its rights as a shareholder in its local subsidiaryExpropriation — Indirect deprivation — Shares — Rights derived from shares — Whether the shares had lost all or almost all significant commercial value — Whether the measures were adopted in the public interest — Whether due process had been followed — Whether there were any undertakings by the StateExpropriation — Interpretation — “Just compensation” — Whether there was any difference between the terms of the BIT and general international law — Whether the meaning of just compensation could be determined in the abstract631Fair and equitable treatment — Whether the impending expropriation constituted a breach of the standard of fair and equitable treatment — Whether the claim concerned the investor’s rights derived from sharesFull protection and security — Whether the State failed to protect an investment from expropriation by local authorities — Whether the claim concerned the investor’s rights derived from sharesUmbrella clause — Whether there was any assurance directed at the investor that created any legal obligations — Whether the claim concerned the investor’s rights derived from sharesCosts — Arbitration costs — Variation by agreement — UNCITRAL Rules — Whether the terms of the BIT varied the default rules for the allocation of arbitration costs

Deutsche Bank AG v. Democratic Socialist Republic of Sri Lanka

ICSID Reports ◽  
2021 ◽  
Vol 19 ◽  
pp. 446-484
Keyword(s):  
Due Process ◽  
The State ◽  
State Responsibility ◽  
Responsibility Attribution ◽  
Content Type ◽  
Host State ◽  
Fair And Equitable Treatment ◽  
Municipal Law ◽  
Equitable Treatment ◽  
Debt Recovery

446Jurisdiction — Investment — Derivative transactions — Interpretation — Claims to money used to create an economic value — Claims to money associated with an investment — Whether a hedging agreement constituted an investment under the BITJurisdiction — Investment — Territorial requirement — Derivative transactions — Whether a hedging agreement satisfied the condition of territorial nexus to the host StateJurisdiction — Investment — ICSID Convention, Article 25 — Interpretation — Derivative transactions — Salini test — Contribution to economic development — Regularity of profit and return — Whether a hedging agreement constituted an investment — Whether all five elements of the Salini test were legal criteria for an investment under ICSID jurisdictionJurisdiction — Investment — ICSID Convention, Article 25 — Interpretation — Derivative transactions — Ordinary commercial transaction — Contingent liability — Whether a hedging agreement was an ordinary commercial transaction or a contingent liabilityJurisdiction — Contract — State-owned entity — Municipal law — Whether a hedging agreement was void because the transaction was outside a State-owned entity’s statutory authorityState responsibility — Attribution — Judicial acts — ILC Articles on State Responsibility, Article 4 — Whether a superior court was an organ of the host StateState responsibility — Attribution — Central bank — ILC Articles on State Responsibility, Article 4 — Whether a central bank was an organ of the host StateState responsibility — Attribution — State-owned entity — ILC Articles on State Responsibility, Article 4 — ILC Articles on State Responsibility, Article 5 — ILC Articles on State Responsibility, Article 8 — Whether a State-owned entity was an organ of the State — Whether actions of a State-owned entity were attributable to the State as an exercise of governmental authority — Whether a State-owned entity was acting under instructions or the direction and control of the StateFair and equitable treatment — Judicial acts — Due process — Interim order — Political motive — Whether court orders violated the standard of fair and equitable treatment — Whether public statements of a senior judge evidenced the political motive of court ordersFair and equitable treatment — Autonomous standard — Interpretation — Minimum standard of treatment — Whether the standard of fair and equitable treatment was materially different from customary international law447Fair and equitable treatment — Government investigation — Due process — Bad faith — Transparency — Whether a central bank’s investigation violated the standard of fair and equitable treatmentExpropriation — Indirect expropriation — Contract — Derivative transaction — Substantial deprivation — Debt recovery — Municipal law — Whether the subsistence of a contractual debt and the possibility to claim under the chosen law of a third State prevented a finding of expropriation — Whether the possibility of recovery in a third State was to be assessed as a prerequisite in the cause of action of expropriation or as a matter of causation and quantumExpropriation — Indirect expropriation — Contract — Substantial deprivation — Legitimate regulatory authority — Proportionality — Whether an interference with contractual rights was an exercise of the host State’s legitimate regulatory authority — Whether the regulatory measures were proportionateRemedies — Damages — Causation — Contract — Debt recovery — Whether the claimant suffered damages if it had the possibility to recover a contractual debt in the courts of a third StateCosts — Indemnity — Egregious breach — Bad faith — Whether the egregious nature of the host State’s breaches of its international obligations meant the claimant was entitled to full recovery of its costs, legal fees and expenses

Dan Cake (Portugal) S.A. v. Hungary (ICSID)

2016 ◽  
Vol 55 (3) ◽  
pp. 496-524
Author(s):  
Catherina Valenzuela-Bock
Keyword(s):  
Arbitral Tribunal ◽  
Rare Finding ◽  
Bilateral Investment Treaty ◽  
Investment Treaty ◽  
Treatment Provision ◽  
Fair And Equitable Treatment ◽  
Equitable Treatment

In Dan Cake v. Hungary, an arbitral tribunal constituted under the auspices of the International Centre for Settlement of Investment Disputes (ICSID) issued a rare finding of denial of justice in its adjudication of the claims by Portuguese investor Dan Cake, alleging that the Hungarian court’s actions during the liquidation proceedings of its subsidiary were a violation of the fair and equitable treatment provision of the Hungary-Portugal Bilateral Investment Treaty (BIT). The decision adds an example of the factual circumstances that lead to a finding of denial of justice and reaffirms the stringent requirements that need to be satisfied in order to succeed on such a claim.

Seeing Like the Fed: Culture, Cognition, and Framing in the Failure to Anticipate the Financial Crisis of 2008

2017 ◽  
Vol 82 (5) ◽  
pp. 879-909 ◽  
Author(s):  
Neil Fligstein ◽  
Jonah Stuart Brundage ◽  
Michael Schultz
Keyword(s):  
Decision Making ◽  
Financial Crisis ◽  
Recent Work ◽  
Open Market ◽  
Financial Instruments ◽  
Federal Open Market Committee ◽  
Macroeconomic Theory ◽  
Making Sense ◽  
Financial Crisis Of 2008 ◽  
Positive Light

One of the puzzles about the financial crisis of 2008 is why regulators, particularly the Federal Open Market Committee (FOMC), were so slow to recognize the impending collapse of the financial system and its broader consequences for the economy. We use theory from the literature on culture, cognition, and framing to explain this puzzle. Consistent with recent work on “positive asymmetry,” we show how the FOMC generally interpreted discomforting facts in a positive light, marginalizing and normalizing anomalous information. We argue that all frames limit what can be understood, but the content of frames matters for how facts are identified and explained. We provide evidence that the Federal Reserve’s primary frame for making sense of the economy was macroeconomic theory. The content of macroeconomics made it difficult for the FOMC to connect events into a narrative reflecting the links between foreclosures in the housing market, the financial instruments used to package the mortgages into securities, and the threats to the larger economy. We conclude with implications for the sociological literatures on framing and cognition and for decision-making in future crises.

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