Russian national files interim measures request, seeking to be freed from Kuwaiti prison while bilateral investment treaty arbitration is prosecuted

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Despite ICSID tribunal’s decision that had enjoined Romania from pursuing extradition of a UK-based businessman, UK courts refuse to block process

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ANALYSIS: In now-public award, Anglo-Adriatic arbitration against Albania is seen to have been dismissed after tribunal finds that investor does not own purported investment; tribunal also addressed security for costs issue

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Indian court defers to arbitrators by refusing to enjoin Mauritian investor Khaitan Holdings’ BIT arbitration against India, but then muses on jurisdictional and merits issues in the dispute [UPDATED]

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An overview of our reporting from September-December 2018

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In new ruling, BIT tribunal does not consider amendment of third party funding contract to be sufficient guarantee that a state could collect on possible future costs order 

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In latest investment treaty tribunal ruling on security for costs, arbitrators reject a request, refuse to order disclosure of funding details and are silent on power to order security in relation to already-incurred costs

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Looking Back (1 of 4): in first Amco Asia v. Indonesia proceeding, tribunal finds jurisdiction over foreign-controlled claimant and refuses to grant provisional measures to stop media discussion of the case

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Arbitrators issue urgent order that prosecutors not follow through with plans to interrogate investor, thus highlighting scope for emergency measures under ICSID system

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A first look at ICSID’s proposed rules changes, including in relation to provisional measures, third-party funding, security for costs, and arbitrator disqualification

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$50 mil Bolivia award is upheld even though arbitrators used valuation method different from those of the parties; new decision casts doubt on power to annul provisional measures or arbitrator disqualification rulings

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Looking Back: early ICSID awards against Congo-Brazzaville in AGIP and Benvenuti & Bonfant cases touched on stabilization clauses, flouting of provisional measures, and questions of quantum

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Emergency arbitrator Bernardo Cremades orders Mongolian state to ensure businessman has “reasonable access” to counsel, but declines to order state to free him from prison

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The Merck v. Ecuador award (Part One): arbitrators wave away jurisdictional objections – including on exhaustion – and warn that non-compliance with interim orders could aggravate treaty breach

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India round-up: updates on five pending investment treaty arbitrations, including rulings (on liability in Deutsche Telekom case), tribunals and anti-suit injunctions

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Looking Back: In first known arbitration under ASEAN Agreement, Yaung Chi Oo Trading v. Myanmar, arbitrators decline jurisdiction due to lack of written approval of investment, and find that the Agreement is not amended by a later treaty

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Alghanim v. Jordan Part One: At provisional measures phase, arbitrators disagree whether Jordan should be enjoined from enforcing tax debt – but later agree to dismiss all jurisdictional objections

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Looking Back: At provisional measures phase of Tokios Tokeles case, arbitrators debated whether to enjoin various legal and investigative actions by Ukraine, and considered how to respond to investor’s recourse to diplomatic protection

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ANALYSIS: as interim measures ruling surfaces, both parties are seen to emerge empty-handed – including in relation to anti-suit injunction request – in Rizzani de Eccher v. Kuwait arbitration

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After alleged violent assault on claimant, Igor Boyko, emergency ex parte relief is ordered by UNCITRAL BIT tribunal to protect him from further harm in Ukraine

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Arbitrators order Russia to suspend its attempts to extradite claimant in ongoing BIT case; now-public ruling is latest to shed light on criteria for ordering interim measures against criminal/extradition proceedings

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In Pugachev v. Russia arbitration, tribunal rules on requests for security for costs, disclosure of third-party funding, and an unusual security-for-claim request

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Nova Group v. Romania provisional measures order surfaces; arbitrators affirm power to enjoin criminal proceedings, but decline to do so

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ANALYSIS: In a welcome development, an ICSID tribunal acknowledges the importance of offering comprehensive reasoning when ordering provisional measures – and explains why procedural integrity of arbitration might be in peril

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In-depth: a first look inside the now-surfaced award in the case of China Heilongjiang v. Mongolia award; claimants now pursuing set-aside

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Looking Back: Fortier-chaired tribunal in Santa Elena v. Costa Rica found environmental objectives irrelevant to compensation under international law

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In previously confidential rulings, stay of enforcement was lifted in Zimbabwe case, and ICSID panel gave the state another shot at effecting restitution of seized properties – but no payment or restitution was forthcoming

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ANALYSIS: Dutch appeal court sees no grounds to set aside Chevron v. Ecuador jurisdictional decision and interim measures

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In-depth: exploring the valuation methodology, treatment of counter-claims and the dissenting opinion in the Teinver v. Argentina case

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Arbitrators express doubts about a right to security for costs, but bankrupt claimant’s “after-the-event” insurance policy obviates any need to rule definitively

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As Gabriel Resources v. Romania arbitration plays out, arbitrators have weighed in on power to order “emergency” interim relief in relation to local tax and fraud investigations

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As award looms in Merck v. Ecuador, earlier Chevron-like interim measures ruling surfaces, ordering Ecuador to block enforcement of a local court judgment that is adverse to foreign investor

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In new ruling, arbitrators disavow power to enjoin criminal proceedings in Uruguay, and see no threat to arbitration posed by ongoing investigations

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A stay of award is kept in place in Bolivia case, and ad-hoc committee picks a side in debate over powers to order posting of bank guarantees

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On the wires: Philippines liable for BIT breach; investor that won emergency orders vs. Ukraine does not fare as well in final result; Iranians pursue Bahrain over bank closure

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Union takeover of French-owned industrial plant is not attributed to state initially, but Venezuela later meets ILC Articles test of adopting such conduct as its own

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Looking Back: Preliminary rulings in Maffezini v. Spain kicked off debate over MFN and dispute settlement, but also addressed attribution and security for costs

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Looking Back: Metalclad v. Mexico tribunal finds expropriation and FET breaches in landfill approvals process

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In newly-released Lundin v. Tunisia ruling, arbitrators affirm jurisdiction over tax dispute and concede scope for a state to seek moral damages for reputational harm

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ANALYSIS: Arbitrators revoke an interim measures decision, but continue to offer little explanation for how “procedural integrity” of arbitration was in peril

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Gabriel Resources hails Romania’s willingness to re-run a contested tax audit, but complains of other unhelpful measures including bid to designate mining area as World Heritage site

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In new ruling, BIT tribunal in Valle Verde v. Venezuela holds that alleged right to future costs-recovery is not a right capable of grounding an interim “security for costs” request

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ICSID tribunal bars parties in Estonian water dispute from publicly releasing legal filings, but leaves door open to some general commenting on the case

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ANALYSIS: tribunal declines to enjoin Argentine criminal proceedings, orders publicization ban, and stays mute on implications of finding that prior orders were breached

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ANALYSIS: arbitrators order Albania to halt extradition bid, but don’t offer much proof for conclusion that “procedural integrity” of arbitration was in peril

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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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Part 1 of 5: In now-public 300+ page Zimbabwe ruling, ICSID tribunal ordered restitution of expropriated farms, as well as tens of millions in further damages

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Part 5 of 5: Tribunal’s damages holdings in Zimbabwe case includes a discounted cash flow award, as well as orders of restitution and moral damages due to physical mistreatment

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INVESTIGATION: new details emerge about use of emergency arbitrators in investment treaty cases, including in Griffin v. Poland dispute

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Arbitrators muse on binding nature of provisional measures, breach of ICSID Convention for non-compliance with such orders, and role of ILC Articles in investor-state arbitration

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ICSID tribunal orders identification of third-party funder, but denies state’s request for security for costs and claimants’ request for provisional measures

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Investor takes emergency arbitrator award under Energy Charter Treaty to a Ukraine court and obtains enforcement of tax-freeze holdings

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In UNCITRAL award, arbitrators refuse to enjoin an expropriation, and later find that mere threat of taking does not breach investment treaty

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Emergency arbitrator use in investment treaty cases: first ruling now available, and more details confirmed about second instance

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INVESTIGATION: in at least two investment treaty cases, foreign investors use emergency arbitrators to block tax hikes and share divestment order

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Tribunal weighs in with a ruling in Caratube v. Kazakhstan case on highly-charged request for provisional measures focused on murder investigations

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Arbitrators again decline to order Indonesia to desist with criminal investigation into alleged forgery of mining license in Churchill & Planet Mining case

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Croatia fails in bid to argue that umbrella clause carve-out should knock out claim; UNCITRAL tribunal finalized in separate case

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In ICSID opinion, Gavan Griffith says third-party funded claimants should show ability to pay future costs awards – or be forced to post funds upfront

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Arbitrators see no deliberate “closing of eyes” by investors with respect to conduct by its local business partner (Minnotte & Lewis v. Poland)

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