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.

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.

scholarly journals What Roles Can Constitutional Law Play in Investment Arbitration?

2014 ◽  
Vol 15 (5-6) ◽  
pp. 862-888
Author(s):  
Laurence Boisson de Chazournes ◽  
Brian McGarry
Keyword(s):  
Constitutional Law ◽  
Dispute Settlement ◽  
Case Law ◽  
Recent Case ◽  
Treaty Ratification ◽  
Investment Arbitration ◽  
Fair And Equitable Treatment ◽  
Per Se ◽  
Equitable Treatment ◽  
Domestic Law

Interplays between international and domestic legal spheres have attracted increased attention in investor-State dispute settlement. From the treaty ratification process to award execution, constitutional norms play recurring roles before, during and after investment arbitrations. This contribution deals with the manner in which parties to such disputes can rely upon constitutional law or, more broadly speaking, domestic law. Notably, major hurdles to the application of domestic law in transnational fora have not necessarily constrained the arbitral profile of constitutional principles. This is because they may gain prominence through informal paths. Rather than directly applying constitutional law per se, tribunals may utilize other paths such as deferring to domestic interpretations of constitutional principles, or to constitutional procedures that appear, for example, to protect fair and equitable treatment. Reexamining recent case law through this lens of informal application, we can then envision other synergies that intermingle these regimes.

5. The politics of arbitration against governments

2021 ◽  
pp. 73-96
Author(s):  
Thomas Schultz ◽  
Thomas Grant
Keyword(s):  
Rule Of Law ◽  
Legal Rights ◽  
International Affairs ◽  
Government Investment ◽  
Investment Arbitration ◽  
Foreign Government ◽  
Fair And Equitable Treatment ◽  
Equitable Treatment ◽  
Great Step ◽  
Full Protection

This chapter focuses on the most politically charged type of arbitration: arbitration between an investor and a foreign government. Investment arbitration marks a great step forward for rule of law in international affairs. A government does not escape responsibility by saying that its own law or courts have declared a given abuse against an investor to be lawful. Investment treaties set out substantive protections, such as fair and equitable treatment, full protection and security, and a guarantee against discriminatory expropriation. They give investors legal rights independent of domestic rules that an unfriendly government might have manipulated at the investor’s cost. The chapter then considers the emerging critique of investment arbitration.

African States, Investor–State Arbitration and the ICSID Dispute Resolution System: Continuities, Changes and Challenges 

2019 ◽  
Vol 34 (2) ◽  
pp. 296-364
Author(s):  
Uché Ewelukwa Ofodile
Keyword(s):  
Public Discourse ◽  
Dispute Settlement ◽  
Case Law ◽  
International Investment ◽  
Investment Arbitration ◽  
Resolution System ◽  
Fair And Equitable Treatment ◽  
The Status ◽  
Equitable Treatment ◽  
Dispute Resolution System

Abstract Against the backdrop of growing public discourse about the usefulness, legitimacy and effectiveness of the investor-State dispute settlement (ISDS) system, this article reviews the participation of African States in international investment arbitration and analyzes some of the cases involving African States in claims initiated under the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (the “ICSID Convention”). Specifically, the article reviews ICSID cases involving African States in which decisions were reached on the merit [i.e. the tribunal determined whether the challenged measure breached any substantive obligation in an international investment agreement (IIA)]. Focus is on cases where claimants alleged violation of the fair and equitable treatment (FET) obligation and cases where expropriation, both direct and indirect were alleged. A review of cases involving African States suggests that there is no African peculiarity or specialty in terms of the awards and analysis of arbitral tribunals. In cases involving African States, ICSID tribunals appear to be guided primarily by the provisions of applicable texts (IIAs, contracts, and legislation) and ICSID case law rather than by the status of a Respondent State as developing or least developed. The paper raises important questions about the development dimension of the ISDS system or the lack thereof, and could contribute to current debates about ISDS reform and the need for sustainable development-oriented reform of IIAs more broadly. The paper also sheds light on the risks that broad and vague provisions in IIAs pose for host States and calls attention to the capacity constraints that limit meaningful IIA reform in Africa.

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.

International investment arbitration: decisions 2017–2018 on the merits of the dispute

2020 ◽  
Vol 10 (4) ◽  
pp. 112-143
Author(s):  
Elizaveta Rachkova ◽  
Iliya Rachkov
Keyword(s):  
Ad Hoc ◽  
Careful Analysis ◽  
International Investment ◽  
The State ◽  
Most Favored Nation ◽  
International Investment Law ◽  
Investment Arbitration ◽  
Fair And Equitable Treatment ◽  
Equitable Treatment ◽  
The Impact

In the previous article, the author reviewed the decisions of international investment arbitration 2017–2018 on the jurisdiction and admissibility of claims. This article reviews the decisions of these arbitrations for the same period on the merits of the disputes. A special place among these decisions is taken by decisions on claims of foreign investors on violation by the host state of the regime (or standard) of fair and equitable treatment. This is quite natural: violation of this standard is the most common claim. In 2017–2018 in particular, many lawsuits in which such claims were made were related to the generation of electricity from renewable sources, mainly from solar energy. These claims were based on the 1994 Energy Charter Treaty. The article examines, in particular, cases of claims in which investors demanded compensation for damage caused by changes in the legislation of the host countries. The question before the arbitrators was: how strongly does the standard of fair and equitable treatment protect against legislative changes? The article also considers such aspects as: violation by the state of the national regime, the most favored nation regime and the standard of full protection and security of foreign investments; direct and indirect expropriation. The solutions in which the question arose about; the power of the arbitral tribunal to review its own preliminary decisions; the impact of environmental aspects on the behavior of the investor and the state; attempts by a party dissatisfied with the arbitration decision to have the decision annulled or overturned either by an ad hoc committee of ICSID or by national state courts. An analysis of the above decisions will reveal some trends in international investment law, which is important in the context of the fact that there cannot be truly uniform practice in investment arbitration due to the lack of a single source of law and a single dispute resolution body. Thus, only a careful analysis of the practice can tell which practice is well established and which is not.

Finding a Workable Balance Between Investor Protection and the Public Interest in the Trans-Pacific Partnership

2019 ◽  
pp. 551-570
Author(s):  
Chin Leng Lim
Keyword(s):  
United States ◽  
New Deal ◽  
The United States ◽  
Investment Arbitration ◽  
Fair And Equitable Treatment ◽  
Investment Treaties ◽  
Philosophical Contribution ◽  
Equitable Treatment ◽  
State Rights ◽  
The New Deal

This chapter discusses the apparent isolation of investment rules from mid-20th-century efforts to embed international economic rules within the overall social context of the ‘New Deal’ in the United States and the British welfare state. Whilst embedded liberalism may have found its way subsequently into modern bilateral investment treaties (BITs) through the United States’ ‘friendship, commerce and navigation’ (FCN) treaties forged during the New Deal era, this did not halt the growth of more pro-investor treaties. An eventual global backlash against investment treaties and investment arbitration formed the background against which TPP emerged. TPP’s framers delegated significant aspects of the task of striking an appropriate balance between host state rights and investor rights to investment tribunals. This chapter explains how such delegation works in the application of TPP’s contingent standards of protection, fair and equitable treatment standard and rule against expropriation. It explains TPP’s legal-philosophical contribution to future treaty design, and its relevance to global reform of investment arbitration.

Das Recht auf gesundheitliche Regulierung im Investitionsschiedsverfahrensrecht

2019 ◽  
Author(s):  
Cornelia Kirchbach
Keyword(s):  
International Law ◽  
Public International Law ◽  
The Public ◽  
Investment Protection ◽  
Treatment Standard ◽  
Investment Arbitration ◽  
Philip Morris ◽  
Fair And Equitable Treatment ◽  
Equitable Treatment ◽  
Health Regulations

Conflicts and tensions frequently arise between public regulatory interests and investment protection, especially in the area of global health law. Which requirements must a host state observe in order to avoid liability before an investment arbitration tribunal for violation of both the prohibition on expropriation and the fair and equitable treatment standard when introducing health regulations? This thesis examines the framework for national regulations under public international law, on the basis of the verdict in the Philip Morris v Uruguay case. In doing so, it examines the areas of worker protection, environmental health, alcohol consumption and food health exemplarily. The analysis concludes that restrictions on national leeway in this respect through regulations in the public interest are less intrusive than often assumed.

The Chevron Saga: The Denial of Justice Standard under the Fair and Equitable Treatment and Customary International Law

2019 ◽  
Vol 4 (1) ◽  
pp. 274-285
Author(s):  
Pablo Jaroslavsky ◽  
Florencia Wajnman
Keyword(s):  
International Law ◽  
The United States ◽  
Arbitral Tribunal ◽  
Customary International Law ◽  
Treatment Provision ◽  
Fair And Equitable Treatment ◽  
Judicial Proceedings ◽  
Chevron Corporation ◽  
The Republic ◽  
Equitable Treatment

The Chevron saga is a paramount example of parallel proceedings. It includes several judicial proceedings in Ecuador and the U.S., different settlements, decisions at all levels of the Ecuadorian judicial system, and enforcement proceedings before the courts of several countries. In 2009, Chevron Corporation and Texaco Petroleum initiated arbitration proceedings against the Republic of Ecuador claiming that Ecuador had breached Article ii of the Treaty between the United States of America and Ecuador concerning the Encouragement and Reciprocal Protection of Investment (the BIT) by failing to provide them fair and equitable treatment. Further, they also claimed that Ecuador committed a denial of justice. In its recent decision, the arbitral tribunal analysed the denial of justice standard under the fair and equitable treatment provision of the treaty and customary international law and concluded that Ecuador had in fact committed a denial of justice. The purpose of this case-note is to analyse the Tribunal’s findings on the denial of justice standard.

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