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All posts by Johanna Braun
Looking Back: Noble Energy v. Ecuador tribunal agreed to hear disputes based on three different legal instruments in one single proceeding
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Looking Back: The ICJ’s Diallo judgments found that states could exercise diplomatic protection with respect to shareholders’ rights, but not on behalf of local companies controlled by their nationals – while observing that the role of diplomatic protection had “somewhat faded” in light of the growth of investor-state arbitration
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Germany’s Constitutional Court upholds provisional application of CETA
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Looking Back: ICJ’s Nottebohm Judgement coined the term “real and effective nationality”, impacting questions of nationality in arbitrations brought by individual investors
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PCA elects new Secretary-General
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Looking Back: The ICJ’s ELSI judgment discussed exhaustion of local remedies, full protection and security, and arbitrariness – influencing investor-state arbitration decisions to come
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In NAFTA mining case, the United States and Canada express their opinions on national treatment, the minimum standard of treatment, expropriation, and the distinction between direct and reflective losses
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United States and Canada chime in on NAFTA limestone quarry case, commenting on minimum standard of treatment, most-favoured nation clause, and the distinction between direct and reflective losses
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Looking Back: Pan American v. Argentina tribunal found that umbrella clause only applied to commitments made by the state as a sovereign
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Annulment decision in Tenaris and Talta v. Venezuela (1) surfaces, revealing why ad hoc committee upheld the tribunal’s reasoning on the claimants’ corporate seats, expropriation finding, and choice of a valuation method that had not been submitted by either party
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Looking Back: ICSID tribunal in AIG v. Kazakhstan dismissed a jurisdictional objection based on the respondent’s lack of participation in the tribunal’s constitution, found an indirect expropriation, and discussed principles of compensation
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Revealed: Tribunal in VEB v. Ukraine upholds jurisdiction over Russian state-owned claimant, but declines to import more favourable standards of treatment through the underlying treaty’s MFN clause
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The United States chimes in on mandatory bifurcation objection and local litigation waiver under US-Peru Trade Promotion Agreement
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[UPDATED] German court declines Nord Stream 2’s request for a derogation from EU directive that gave rise to the company’s ECT claim against the European Union; Nord Stream 2’s request to submit preliminary questions to the CJEU is also dismissed
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HSBC makes good on earlier threat to initiate ICSID arbitration against El Salvador
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Another Hungarian food voucher award withstands annulment at ICSID
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Uncovered: ICSID tribunal denies both bifurcation of jurisdictional objections and “informal” bifurcation requested by the claimant, finding that adjustment of procedural calendar suffices to maximize efficiency and fairness
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Details surface regarding provisional measures request in Georgia telecoms arbitration
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Looking Back: Ad hoc committee in AES v. Hungary set high threshold for manifest excess of powers and failure to state reasons, found no fault with the arbitrators’ treatment of EU law arguments, and dismissed the claimants’ annulment bid
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Looking Back: Tribunal in MCI v. Ecuador used the principle of non-retroactivity of treaties to exclude some claims from its jurisdiction; remaining case was dismissed on the merits
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ICSID ad hoc committee decides to continue stay of wind energy award
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Australia and United Kingdom announce “agreement in principle” on a new FTA, including an investment chapter, but no ISDS mechanism
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Looking Back: Azurix v. Argentina tribunal grappled with the distinction between contractual and treaty claims, discussed legitimate expectations, and found that the state’s behaviour towards a water concessionaire amounted to a treaty violation
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Uncovered: Award in poppy seed financing case reveals why arbitrators dismissed intra-EU objection in a dispute featuring the very treaty that underlies the CJEU’s Achmea decision; tribunal majority upheld illegality objection
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Sole arbitrator hits Lesotho with 50 million EUR renewables award
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Analysis: UNCITRAL tribunal finds that revocation of land title in violation of domestic law amounts to an expropriation under the Italy-Tanzania BIT
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Looking Back: Tribunal in AES v. Argentina pondered the role of arbitral precedent, set out a two-prong test for defining a “legal dispute”, and found contractual forum selection clauses irrelevant to a treaty-based dispute
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Analysis: On quantum, Deutsche Telekom v. India tribunal opts for sunk costs approach, departing from parallel Indian satellite spectrum cases
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Quantum Award in Deutsche Telekom v. India surfaces
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[Updated with a copy of the Award] Tribunal in previously-unseen award against Russia upheld jurisdiction over Crimea-related claims, and awarded over 1.3 billion USD in compensation
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