Analysis: UNCITRAL tribunal finds that narrow environmental emergency does not fall under “national security interests” exception; takeover of landfill operation is found to breach MST and expropriation provision

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Romania Round-Up: Two under-the-radar BIT tribunals, claimant in ICSID dispute decries UNESCO classification, and newly-uncovered ICC arbitrations

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Analysis: Tribunal chaired by Kaufmann-Kohler dives into corruption allegations, limitation period/scope of liability for judicial acts, and environmental protection provision; Brigitte Stern disagrees with timing of alleged breach and finding of autonomous FET standard

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Tribunal hearing gold mining dispute with Costa Rica upholds some (but not all) claims for FET breaches, but declines to award damages; Brigitte Stern pens a separate opinion

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Analysis: Ad hoc committee finds that parties cannot waive the tribunal’s duty to render a reasoned award, but ultimately upholds bulk of Perenco v. Ecuador award; two discrete damages calculations are annulled for failure to state reasons

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Bulk of Perenco v. Ecuador award is upheld, but annulment committee finds fault with two discrete damages items

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

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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 majority in Muszynianka v. Slovakia applied proportionality analysis to find that Slovakia’s constitutional amendment on water resources did not breach the Poland-Slovakia BIT; all three arbitrators found fault with certain administrative delays, but damages claim foundered due to lack of causation

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Colombia round-up: A new notice of dispute, imminent public hearings, and an update on other arbitration-related developments regarding the state

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As a second hearing in Gabriel Resources v. Romania approaches, the parties offer clarifications regarding the timing of the alleged breaches

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

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Balkans Round-Up: An update on disputes against Albania, Bosnia, Greece, North Macedonia and Romania

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Colombia round-up: An update on 12 treaty-based disputes against the state

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Analysis: In Gosling v. Mauritius, majority saw no treaty violation, stressing the absence of a right to build a real estate development on UNESCO world heritage site; Stanimir Alexandrov disagreed

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Czech Republic is unable to overturn its (only) loss in a solar case, as Swiss Federal Tribunal declines to set aside 2017 award on jurisdiction and liability

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Looking Back: In Aguas del Tunari v. Bolivia, Cochabamba “Water War” led to controversial arbitration; tribunal ruled on many important jurisdictional questions, including first ICSID amicus curiae request

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ANALYSIS: in quantum ruling, Perenco v. Ecuador tribunal awards damages for each breach independently, and relies on findings of independent expert to value Ecuador’s counterclaim for environmental remediation

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UPDATED: As Vattenfall nuclear case sees new round of submissions, Germany faces another Energy Charter Treaty arbitration following modification of renewables incentives regime

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Breaking: Spain ordered to pay Sol Es Badajoz GmbH 40+ million (EUR) in Energy Charter Treaty case heard by Donoghue, Williams and Sacerdoti

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Revealed: reasons why Van Houtte, Beechey, and Landau saw no legitimate expectation to stabilization of Czech solar feed-in-tariffs; newly-seen award also deemed intra-EU objection untimely

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Analysis: newly-divulged NextEra v. Spain decisions reveal fault lines between solar dispute tribunals on legitimate expectations derived from legislation and appropriateness of DCF valuation

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Breaking: Spain ordered to pay 41.7 million in new ECT award, as tribunal of Binnie, Haigh and Veeder reject intra-EU objection and deem Spanish renewables legislation to be a specific obligation to investor; claimant 9Ren is subsidiary of US private equity fund First Reserve

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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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Czech Republic prevails in four solar claims, as tribunal of Van Houtte, Landau and Beechey issue final awards

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Setback for Spain, as judge refuses to consult European Court of Justice on question of Energy Charter Treaty’s applicability within the EU

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Spain tries to remove tribunal chair in renewables case

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In RREEF v. Spain, dissenting arbitrator Robert Volterra finds ECT breaches beyond mere failure to provide a reasonable rate of return, and criticizes majority’s support for tribunal-appointed damages expert

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Spain round-up: new decisions are rendered in renewables cases and yet another investor claim is filed

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Canada ordered to pay $7 million for botched environmental review, but NAFTA arbitrators reject U.S. investors’ bid for $400+ million in lost profits

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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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In now-public Energy Charter Treaty award (Greentech v Italy), Park-chaired tribunal finds that Achmea ruling does not preclude tribunal’s jurisdiction, but Sacerdoti dissents on liability

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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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Investigation: newly-unearthed ICC award analyses whether local community opposition to project is a political risk for which African state had pledged to indemnify investors

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Canada hit with investment treaty arbitration from U.S. coal miner, relating to province of Alberta’s phasing out of coal-fired energy generation

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Analysis: arbitrators in Greentech v. Spain award agree that Achmea ruling is not relevant to their jurisdiction, but ultimately disagree whether Spain is liable for breach of Energy Charter Treaty

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Germany lodges request to disqualify all three arbitrators in Vattenfall nuclear arbitration

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ANALYSIS: In Kenya award, tribunal reads legality requirement into investment treaty and ICSID Convention, and dismisses claims based on mining license that was issued at eleventh hour before change in government

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Kenya wins BIT arbitration, as Binnie-chaired tribunal finds that miner failed to comply with local environmental legislation requirement; separate corruption defence frowned on

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ICSID tribunal decides that it does not have the power to stay the enforcement of its award while a supplementary decision request is pending

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Analysis: In newly-rendered Aven v. Costa Rica award, arbitrators engage with CAFTA’s “dominant and effective nationality” requirement  

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Analysis: Arbitrators delve into relationship between CAFTA’s investor protections and environmental provisions, and ultimately see no breach of the former

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An update on eight investment arbitration claims against Canada

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Arbitrators dismiss U.S. investors’ claims against Costa Rica, and find that state’s enforcement of its environmental laws was not in breach of CAFTA

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Chevron v. Ecuador award analysis: tribunal considers final questions of jurisdiction and surveys evidence of how Ecuadorian environmental trial was (mis)conducted

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Natland v. Czech Republic (Part 1 of 2): Tribunal finds jurisdiction over claimants under three out of four treaties and declines to apply ECT’s tax carve-out to contested measure

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Natland v. Czech Republic (Part 2 of 2): On the merits, tribunal finds stabilisation commitment in Czech legislation and breach of that commitment with introduction of Solar Levy

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Antaris v. Czech Republic (Part 1): arbitrators find that Czech solar levy is not eligible for Energy Charter Treaty “tax measure” carve-out

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Antaris v. Czech Republic (Part 2): on merits, tribunal finds that investment protection does not extend to “speculative” investors

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Antaris v. Czech Republic (Part 3): Gary Born sees clearly guaranteed FiT payments and deplores use of “margin of appreciation” doctrine

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Antin v. Spain (Part 1): arbitrators see extensive due diligence by investors in concentrated solar power sector, and reject a series of jurisdictional and admissibility objections

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