All posts by Jarrod Hepburn

Analysis: Newly-released decision in ACF v. Bulgaria reveals tribunal’s reasons for dismissing intra-EU objection, relying on ECT conflict clause

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Analysis: ICSID tribunal in Al Ramahi v. Hungary finds no denial of justice in regular application of bankruptcy law by Hungarian courts; 8 billion EUR fine was “shockingly disproportionate”, but later corrected by domestic legal system

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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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[Updated] 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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