scholarly journals Investment arbitration and the MFN conundrum: The long and winding road from Maffezini to Içkale

2021 ◽  
Vol 3 (2) ◽  
pp. 149-168
Author(s):  
Uroš Živković
Keyword(s):  
Arbitral Tribunal ◽  
Most Favored Nation ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Most Favored Nation Clause ◽  
Investment Treaty Arbitration

Interpretation of the most-favored nation clause in investment treaty arbitration has been sparking debates for the better part of two decades. The paper examines the issue from the perspective of two opposing ends-a broad stance of the seminal decision in Maffezini Case and a recent more restrictive approach undertaken by the arbitral tribunal in Içkale decision, in order to paint in broad strokes the outlines of a balancing act mechanism in interpretation that author puts forward.

Beyond Abaclat: Mass Claims in Investment Treaty Arbitration and Regulatory Governance for Sovereign Debt Restructuring

2018 ◽  
pp. 208-247
Author(s):  
Kei Nakajima
Keyword(s):  
Sovereign Debt ◽  
Financial Policy ◽  
Arbitral Tribunal ◽  
Debt Restructuring ◽  
Regulatory Governance ◽  
Regulatory Aspects ◽  
Investment Treaty ◽  
Balanced Approach ◽  
Investment Arbitration ◽  
Investment Treaty Arbitration

Abstract Whereas investment treaties and arbitration rules do not usually provide any explicit provision for mass claims in investment treaty arbitration, the Tribunal in Abaclat v Argentina established a landmark jurisprudence that allowed a massive 60,000 investors to bundle and bring their claims before a single arbitral tribunal. However, its reasoning has been severely criticised for its conclusion, which apparently favours bondholder protection at the expense of financial policy leeway of defaulted sovereigns: investment arbitration may adversely affect the orderly implementation of sovereign debt restructuring. This article attempts to take a more balanced approach towards this issue, by focusing on regulatory aspects of arbitral proceedings. A ‘regulatory’ investment treaty arbitration will not only provide creditor protection by opening the door for mass claims, but will also show a deference to an orderly restructuring by closing the door if circumstances so require.

THE UNIDROIT PRINCIPLES OF INTERNATIONAL COMMERCIAL CONTRACTS AND INVESTMENT TREATY ARBITRATION: A LIMITED RELATIONSHIP

2015 ◽  
Vol 64 (4) ◽  
pp. 905-933
Author(s):  
Jarrod Hepburn
Keyword(s):  
International Law ◽  
Public Law ◽  
Private Law ◽  
Applicable Law ◽  
Investment Protection ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
General Principles Of Law ◽  
Domestic Law ◽  
Investment Treaty Arbitration

AbstractThe UNIDROIT Principles of International Commercial Contracts have appeared in a small but steady trickle of investment treaty arbitrations over the last decade. This article considers the use of the Principles by investment tribunals on questions of both domestic law and international law. It suggests that reference to the Principles can play an important legitimating role on questions of domestic law, but that this should not replace reference to the applicable law. On questions of international law, reference to the Principles may be justified by resort to the general principles of law. However, the article contends that there is only a limited role for the UNIDROIT Principles where the primary and secondary rules of investment protection are already found in treaties and custom. In addition, while general principles have historically been drawn from domestic private law, there is increasing recognition that general principles of public law are more relevant to investment arbitration. Given this, arbitrators resolving questions of international law must be cautious in references to the UNIDROIT Principles, a quintessentially private law instrument.

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.

Part III Guide to Key Jurisdictional Issues, 17 Counterclaims in Investment Treaty Arbitration

2018 ◽  
Author(s):  
Clodfelter Mark A ◽  
Tsutieva Diana
Keyword(s):  
International Trade ◽  
United Nations ◽  
Case Law ◽  
The Core ◽  
Trade Law ◽  
International Trade Law ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Investment Law ◽  
Investment Treaty Arbitration

The last decade has seen an increase in the efforts of respondent States to have their own claims against investor-claimants heard in investor-State proceedings commenced against them. The investment arbitration case law has revealed a host of legal and practical difficulties in admitting counterclaims. Most of these stem from the core requirement that parties must consent to submit their differences to investment arbitration. The applicable arbitration rules have also been cited as a bar to counterclaims. This chapter explores the functionality of applicable procedural rules as bases for an investment tribunal’s authority to hear counterclaims under the two main investment law regimes: the International Centre for Settlement of Investment Dispute (ICSID) Convention and Arbitration Rules and the United Nations Commission on International Trade Law Arbitration Rules. A review of the milestone cases under these two regimes reveals the major problems that have arisen.

International Investment Arbitration

2017 ◽  
Author(s):  
McLachlan Campbell ◽  
Shore Laurence ◽  
Weiniger Matthew
Keyword(s):  
International Law ◽  
Present State ◽  
Critical Review ◽  
International Investment ◽  
Comprehensive Description ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Author Team ◽  
Substantive Law ◽  
Investment Treaty Arbitration

This is the long-awaited second edition of this widely-referenced work on the substantive law principles of investment treaty arbitration. It forms a detailed critical review of the substantive principles of international law applied by investment arbitration tribunals, and a clear and comprehensive description of the present state of the law. The first edition met with immediate success as a result of the authors’ achievement in describing and analysing the volume of law created, applied and analysed by tribunals. The second edition is fully updated to take account of the arbitration awards rendered in the period since 2007. Written by an internationally recognised author team, it is now the most comprehensive and up to date work in its field and no practitioner or academic can afford to be without it.

Dual nationality revisited: a modern approach to dual nationals in non-ICSID arbitrations

2019 ◽  
Vol 35 (2) ◽  
pp. 121-148
Author(s):  
Stavros Michalopoulos ◽  
Edward Hicks
Keyword(s):  
Vienna Convention ◽  
Modern Approach ◽  
Investment Protection ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Diplomatic Protection ◽  
Dual Nationality ◽  
Holistic Interpretation ◽  
Vexed Question ◽  
Investment Treaty Arbitration

Abstract The authors revisit the vexed question of the standing of investors to bring a claim against one of their states of origin. Contrary to Article 25 of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention), which forbids natural persons in possession of the nationality of the host state to initiate proceedings against it, the majority of other arbitration rules do not provide for such a prohibition. Consequently, unlike the realm of diplomatic protection, where the question seems settled, there is little guidance in the treaty-based field of investment arbitration on the probable scenario of a dual national suing one of its states of nationality in a non-ICSID arbitration context. Some tribunals have resorted to traditional principles to deny investment protection to dual nationals, whereas recent awards have been considerably more lenient. This article will demonstrate that, given the fundamental differences between investment treaty arbitration and diplomatic protection, the application by analogy of doctrinal formulations of the former to the latter is not warranted. Instead, a holistic interpretation in accordance with Article 31 of the Vienna Convention on the Law of Treaties should be the primary point of focus of international tribunals, taking into account the object and purpose of the treaty and comparable treaty practice.

Part V Remedies and Costs, 24 Interim Relief in Investment Treaty Arbitration

2018 ◽  
Author(s):  
Kaufmann-Kohler Gabrielle ◽  
Antonietti Aurélia ◽  
Potestà Michele
Keyword(s):  
International Trade ◽  
United Nations ◽  
High Threshold ◽  
Arbitral Tribunal ◽  
Trade Law ◽  
International Trade Law ◽  
Investment Treaty ◽  
Temporary Protection ◽  
Domestic Courts ◽  
Investment Treaty Arbitration

This chapter reviews the requirements for a party to obtain interim relief from an arbitral tribunal, the measures that can be ordered, their nature, and effects. It also considers whether the parties to the dispute can seek interim relief from domestic courts rather than from the arbitral tribunal. The scope of the interim relief available in the context of investor-state disputes is broad enough to meet the parties’ legitimate needs for temporary protection, subject to limitations which may be found in the relevant treaty, such as the ones contained in NAFTA Article 1134. However, applicants are also faced with a high threshold when seeking to establish that the interim relief requested is urgent and needed. This may explain the reluctance of many tribunals to grant interim relief in the context of investor-state arbitration, whether in the International Centre for Settlement of Investment Dispute (ICSID) system or under the United Nations Commission on International Trade Law Rules.

Part II Ambit of Protection, 4 Parallel Proceedings

2017 ◽  
Author(s):  
McLachlan Campbell ◽  
Shore Laurence ◽  
Weiniger Matthew
Keyword(s):  
Dispute Resolution ◽  
State Courts ◽  
Breach Of Contract ◽  
The Road ◽  
Res Judicata ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
The Impact ◽  
The Relationship ◽  
Investment Treaty Arbitration

Chapter 4 deals with a complex set of problems that have arisen in determining the relationship between parallel claims in investment arbitration and other forms of dispute resolution, including proceedings in host State courts. Five issues which arbitral tribunals have had to confront in considering the impact of other forms of dispute resolution upon their jurisdiction are explored in particular: (1) the distinction between breach of contract and breach of treaty; (2) election, waiver, and ‘fork in the road’; (3) prior resort to local remedies; (4) internationalised contract claims and ‘umbrella clauses’; and (5) parallel treaty arbitration. The chapter considers the extent to which the general doctrines of lis pendens, res judicata, election, waiver, and abuse of process are capable of application in investment treaty arbitration.

scholarly journals Through the looking glass: The UNCITRAL Rules on Transparency and what they reveal about theories of investment treaty arbitration

2021 ◽  
Author(s):  
◽  
Johanna McDavitt
Keyword(s):  
International Law ◽  
Public Interest ◽  
Commercial Arbitration ◽  
Public International Law ◽  
The Public ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Theoretical Conception ◽  
Looking Glass ◽  
Investment Treaty Arbitration

<p>This paper aims to use the transparency debate within investment arbitration, and specifically the discussions of Working Group II when preparing the UNCITRAL Rules on Transparency, as a lens to examine how the international community conceptualises investment arbitration. It will argue that investment arbitration is no longer viewed as a private system of dispute resolution akin to international commercial arbitration. Rather, the public interest, public international law, and regulatory nature of investment arbitration is increasingly coming to the fore. Accordingly, the consent of the parties is no longer at the heart of arbitral authority. This paper aims to identify what alternate theoretical conception of investment arbitration is driving transparency initiatives in investment arbitration.</p>

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