NAFTA tribunal grants request by local indigenous representative to make amicus submission, but declines to repeat non-aggravation order in light of recent conduct by Mexico

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Mexico intervenes in Keystone XL arbitration, siding with the USA’s view that the USMCA’s NAFTA legacy provision does not apply to disputes that arose during the NAFTA-USMCA transition period

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ICSID tribunal allows NGOs to intervene in hydropower dispute with Guatemala, but splits over scope of amicus submission; earlier bifurcation decision also comes to light

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In non-disputing party submission filed in NAFTA legacy dispute, the USA opines that the claimants bear the burden of proof on jurisdiction, and submits that police powers doctrine does not include an element of proportionality

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In non-disputing party submission, USA contends that arbitral practice regarding “autonomous” FET standard is irrelevant when interpreting US-Peru FTA

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ICSID tribunal (partially) grants European Commission’s request to intervene in intra-EU arbitration against Germany

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ECT tribunal allows European Commission to file amicus brief in renewables case against Italy, but denies requests for access to record and hearing

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Analysis: Tribunal majority in Renergy v. Spain finds that radical changes to renewable energy framework breached legitimate expectation of relative stability; dissenter opines that legitimate expectations are not the appropriate framework for assessing the dispute

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Tribunal majority rejects request for amicus participation; Philippe Sands dissents, pointing to need to address concerns about legitimacy of ISDS regime

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ICSID tribunal declines request for amicus intervention from local lawyer who alleges that claimant’s pleadings are causing damage to his professional reputation

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Long-running Vattenfall v. Germany arbitration is discontinued, following settlement between the parties

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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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In Mexican offshore oil dispute, Canada and the United States set out their views on claims by dual nationals, reflective losses, and state enterprises under NAFTA

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Uncovered: ICSID ad hoc committee rejected Hungary’s bid to annul dismissal of intra-EU objection in food voucher dispute

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Analysis: Antin v. Spain committee finds that treatment of intra-EU jurisdictional objection does not warrant annulment; committee members also emphasize the tribunal’s discretion in the valuation of damages

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[Updated] VIAC Rules of Investment Arbitration come into force; new rules regulate counterclaims, third-party funding, security for costs and expedited proceedings, and provide for limited transparency

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The US and Mexico chime in on limitation period for continuing breach and ownership requirement in NAFTA arbitration

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ICSID publishes fifth working paper, proposing new provisions on ownership and control, third-party funding and costs; Secretariat invites state parties to proceed to a final vote

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Central America Round-Up: An update on arbitration-related developments in the region

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Analysis: Tribunal majority in Eurus v. Spain gives weight to EU law in assessing the claimant’s legitimate expectations

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DR-CAFTA parties set out views on limitation period, minimum standard of treatment, and non-discrimination obligations in mining case against Guatemala

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Analysis: Tribunal in FREIF v. Spain relies on the claimant’s own due diligence to determine that the investor could not legitimately expect a fixed return

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Community members submit renewed petition for amicus participation in Guatemalan mining dispute

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Reasons surface why Cube v. Spain committee declined the EC’s request to intervene as amicus curiae, and lifted the stay of enforcement of the award

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USA and Mexico submit that NAFTA parties reached a binding subsequent agreement on interpretation of the treaty’s national treatment provision

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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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Revealed: In Griffin Group v. Poland, Kaufmann-Kohler-chaired tribunal rejects Poland’s intra-EU objection, but the investor’s expropriation and FET claims fail on the merits

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EU’s second draft proposal for Energy Charter Treaty renegotiation reaffirms the EU’s commitment to a multilateral investment court, proposes a provision on valuation of damages, and addresses public debt restructuring in post-COVID 19 context

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In Tennant v. Canada, tribunal refuses to order interim measures and security for costs, but mandates third-party funding disclosure; bifurcation request is deemed premature

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Canada round-up: Canada prevails in claim brought by Egyptian investor, as a number of other cases see new developments

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In just-surfaced InfraRed v. Spain award, tribunal saw specific commitments by Spain not to revise the tariffs, premiums, and price limits applicable to the claimants’ CSP plants

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EU’s ideas for Energy Charter Treaty renegotiation come to light; draft proposals still open to member-state comment, but include 3PF provisions, security for costs, expedited objections, and clearer denial of benefits

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Jurisdictional decision in PV Investors v. Spain surfaces: majority of Kaufmann-Kohler/Sepulveda-Amor declines jurisdiction over domestic claimants under the UNCITRAL Rules; Brower disagrees

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Analysis: In latest award against Spain, arbitrators decide that investors in small-hydro plants could not reasonably expect fixed incentives, but were entitled to a reasonable rate of return

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ANALYSIS: Majority in Adamakopoulos v. Cyprus rejects intra-EU jurisdictional objection and upholds jurisdiction over mass arbitration brought by a group of bondholders and depositors in local banks

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In latest Spain ruling, arbitrators find no violation of RWE’s legitimate expectations, but see a breach of the ECT’s proportionality requirement

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NAFTA tribunal majority rejects amicus curiae bid by bondholders; newly-released documents lay out allegations of bribery and illegal collusion in oil rig case

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ANALYSIS: ECT tribunal of Reichert, Poncet and Dupuy weighs in with decision, rejecting Italy’s efforts to derail Rockhopper v. Italy arbitration due to Achmea and intra-EU objections

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ICSID annulment committee allows European Commission to intervene in an ECT case, but limits intervention to EC’s complaint about earlier tribunal’s decision to oblige amicus curiae to make costs undertakings

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European Commission weaponizes recent member state declarations on Achmea in order to contest enforcement of ECT award

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In new ruling, ICSID tribunal denies application for non-disputing party submission, considering that the petitioners failed to prove that the arbitral dispute involved issues of human rights

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An overview of our reporting from September-December 2018

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In a new ruling, ICSID tribunal considers that it has the power to limit the scope of an amicus curiae submission, thus excising legal arguments and testimony

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Looking Back: Methanex v. USA established iconic ‘police powers’ test, admitted first-ever amicus brief, and delved into use of WTO case-law, admissibility of unlawfully-obtained evidence, and NAFTA’s ‘relating to’ requirement

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Looking Back: Methanex tribunal deferred to scientific study undertaken by University of California, and rejected jurisdiction after finding no breaches on the merits

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ICSID tribunal denies third party request for release of witness statements and expert reports in controversial mining case

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Local NGO opponent of claimant-investor is granted permission to intervene in Costa Rica gold mine arbitration, and given access to documents

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In-depth: exploring the reasons why an ICSID annulment committee has declined Romania’s bid to annul Micula award

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European Commission’s arguments before Micula annulment committee are dismissed, but E.C. says that its non-enforceability arguments are gaining purchase in member-state courts

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Attempted interventions of pharma industry lobby groups and certain academics are nixed in Eli Lilly v Canada NAFTA case

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ANALYSIS: as unprecedented number of would-be amicus curiae intervene in Eli Lilly v. Canada NAFTA case, arbitrators face several dilemmas

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Spain round-up: Even as European Commission throws up red flags, two new claims land at ICSID, and tribunal members are finalized in another

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Intra-EU treaty claims controversy: new decisions and developments in claims brought by EU investors vs. Spain and Hungary

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INVESTIGATION: Intervention by EU Commission – and expression of doubts on enforceability – preceded investor’s decision to drop intra-EU BIT claim

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REVEALED: a first look at arguments made by European Commission in its recent bid to halt UNCITRAL arbitration under intra-EU BIT

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Eli Lilly sets out case for patent invalidation being deemed an expropriation – rather than non-compensable governmental action

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Arbitral tribunal is constituted to hear Costa Rica gold mine dispute, and local NGO opponent of claimant-investor seeks intervener status

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Brussels’ latest intervention casts shadow over investment treaty arbitrations brought by jilted solar energy investors

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INVESTIGATION: In recent briefs, European Commission casts doubt on application of Energy Charter Treaty to any intra-EU dispute

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ICSID Annulment committee rejects effort by Spain-U.S. Chamber of Commerce to intervene as amicus curiae in Spain-Guatemala BIT case

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Tribunal picks Washington DC as seat for unfolding NAFTA arbitration; hearings to be closed, and amici can’t access more info than public

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Pacific Rim mining company argues that El Salvador’s investment statute should be read in light of international jurisprudence

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Tribunal nixes requests by Canadian arbitration lawyer and an unrelated NGO to intervene as amicus curiae in Apotex v. USA NAFTA arbitration

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ANALYSIS: Electrabel ruling examines relations between EU law and Energy Charter Treaty and rejects European Commission’s suggestion that case should not be arbitrated

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Several arbitration industry interests weigh in with support for BG’s effort to overturn vacature of $185 million Argentine award

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ANALYSIS: Tribunal’s reading of amicus curiae tests could make life difficult for antagonistic amici – and those seeking to raise novel concerns such as human rights law

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Tribunal rules that mining company failed to waive local court proceedings, thus precluding CAFTA arbitration against El Salvador; hearings in a parallel case loom

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Hungary prevails in first of three Energy Charter Treaty (ECT) arbitrations over power pricing disputes; arbitrators affirm that “politics” is not a dirty word

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ANALYSIS: ECT’s stability clause does not immunize foreign investors from legal changes in Hungary; arbitrators see no clash between ECT and Hungary’s EU law obligations

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