All posts by Jarrod Hepburn

Pleadings in Slovakian oil and gas dispute detail parties’ disagreements on “social license to operate”, use of DCF valuation without investment track record, and need for active investment

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Analysis: Tribunal in Natland v. Czech Republic awards damages based on hypothetical European Commission decision regarding compatibility of Czech solar incentives scheme with EU state aid rules

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Analysis: Tribunal in ACF v. Bulgaria finds that measures interfering with renewable energy incentives violated clear expectation of regime stability

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Looking Back: Zhinvali v. Georgia tribunal issued provisional measures against domestic courts, but ultimately declined jurisdiction over claims for pre-contractual expenditures

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Newly-published procedural orders in Belbek v. Russia reveal how tribunal dealt with respondent’s belated decision to participate in Crimea case, and offer window into quantum phase of the proceedings

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[Updated] Southeast Asia Round-Up: Arbitrators are revealed in claims by Chevron and Total against Thailand, a new threat against Vietnam, arbitrations involving Indonesia and the Philippines conclude, and RCEP ratifications pass hurdle for entry into force

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Looking Back: Merrill & Ring v. Canada tribunal found that custom had evolved to favour investors, but that no breach could arise without harm to claimant

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Balkans Round-Up: A new case surfaces, freedom of information decisions by Bosnia and Serbia, and updates on various other arbitration-related developments in the region

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Looking Back: OKO Pankki v. Estonia solidified legitimate expectations as central to FET, found a continuing breach by the state, and reinforced awards of compound interest in investment treaty arbitration

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Analysis: In Devas v. India, tribunal majority applies DCF model to value a business with no operational activity, while dissenter would have awarded only sunk costs

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Looking Back: Procedural decisions in Glamis Gold v. USA established prominent test for bifurcation, accepted amicus curiae submissions, and considered privilege over inadvertently produced documents

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ICSID and UNCITRAL release comments from stakeholders on draft code of conduct for ISDS adjudicators; frequently-appointed arbitrators raise concerns about the project

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Looking Back: UNCITRAL tribunal in Biloune v. Ghana found creeping expropriation of resort complex, but declined jurisdiction over denial of justice and human rights claims

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Raiffeisen v. Croatia tribunal follows Addiko and UniCredit decisions in rejecting intra-EU objection despite peculiar treaty provision that refers to compatibility with EU acquis

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US non-disputing party submission in Vento v. Mexico addresses minimum standard of treatment, non-discrimination, continuous nationality, time-bar, definition of investment and limitations on loss

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Looking Back: ICSID tribunal in Middle East Cement v. Egypt found a partial expropriation of cement import business, and criticised state failures to notify claimant of ship seizure and auction

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Breaking: Blusun v. Italy award survives investors’ annulment request; committee sees no failure to consider key evidence on legitimate expectations

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Looking Back: NAFTA tribunal declined to consolidate parallel investor claims against Mexico, citing confidentiality concerns between fiercely competitive claimants and limited risk of inconsistent decisions

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Nepal Round-Up: government releases draft model investment treaty, revealing inspiration from Indian counterpart; arbitrators issue provisional measures in pending BIT case

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Looking Back: Pope & Talbot v. Canada offered influential discussions of indirect expropriation and national treatment, and famously viewed 2001 FTC Statement as an amendment to NAFTA

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Looking Back: Canfor/Tembec/Terminal softwood lumber arbitrations provided early engagement with questions of parallel NAFTA Chapter 11 proceedings

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Nissan v. India: Previously-unseen jurisdictional decision reveals tribunal’s rejection of objections on tribunal constitution, fork-in-the-road, contractual forum selection clause, time-bar, and taxation exception

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Tethyan Copper Company v. Pakistan: until-now confidential 2017 liability decision reveals tribunal’s reasons for finding breach of legitimate expectation to receive a mining licence

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Pakistan faces hefty loss in newly-rendered ICSID award in Tethyan Copper mining case; core damages exceed $4 billion, and pre-award interest adds another $1.75 billion 

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Ukraine held liable for disproportionate gambling ban imposed without consultation or transition period; European human rights court ruling comes as another investor, Olympic Entertainment Group, pursues BIT arbitration path

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Investigation: Poland held liable for BIT breach in never-published award in Ingo Lutz Schaper v. Poland case over heavy-handed enforcement of customs laws

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Looking Back: In first award rendered in an Energy Charter Treaty arbitration, Nykomb v. Latvia tribunal found discrimination when state-owned electricity firm granted higher tariffs to locally-owned producers

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Looking Back: Long confidential decisions in second Saar Papier v. Poland case reveal how a new tribunal reckoned with res judicata effects of awards rendered in first BIT proceeding

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Argentine court rules that ICSID decisions involving Argentina must be published under domestic FOI law – leading to successful acquisition of previously-confidential Exxon-Mobil and Houston Industries rulings

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Analysis: As Huawei invokes investment treaty protections in relation to 5G network security controversy, what scope is there for claims under Chinese treaties with Czech Republic, Canada, Australia and New Zealand?

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ANALYSIS: Singapore reverts to long-standing template in latest investment treaty negotiation with Kazakhstan, with most innovations of EU-Singapore treaty absent from finalized text

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ANALYSIS: In Anglo American v. Venezuela award, contractual agreement to pass asset ownership to state excludes expropriation; majority concedes some administrative failings, but also sees investor ‘obstinacy’ – and ultimately no FET breach

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Full details of Iranians’ arbitral victory over Korea finally come into view, with arbitrators seeing BIT breach after investment deposit not returned, but disagreeing whether any compensation was warranted

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As another claim is filed against Libya under OIC investment agreement, government goes to court to try to block PCA-enabled arbitrations under treaty

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India agrees new investment treaty text with Colombia, Belarus and Taiwan, advancing some of its key concerns such as partial exhaustion and human rights [UPDATED]

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Looking Back: EnCana v. Ecuador tribunal splits on expropriation, disagreeing on role of domestic law; case raised early concerns over parallel arbitral appointments

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