Looking Back
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Recent Articles
Looking Back: Canfor/Tembec/Terminal softwood lumber arbitrations provided early engagement with questions of parallel NAFTA Chapter 11 proceedings
Oct 10, 2019Looking Back: In Vieira v. Chile, von Wobeser-chaired tribunal found by majority that claims did not fall under temporal scope of Chile-Spain BIT
Sep 19, 2019Looking Back: In Lucchetti v. Peru, arbitrators declined jurisdiction ratione temporis, side-stepping Peru’s allegations of corruption; majority of ICSID ad hoc committee denied request for annulment
Sep 19, 2019Looking Back: Dabhol power plant saga led to numerous commercial, investment treaty and inter-state arbitrations, and perhaps foreshadowed India’s later concerns over BITs
Sep 11, 2019Looking Back: In IBM v. Ecuador, arbitrators disagreed on distinction between contract claims and treaty claims, but unanimously issued award incorporating parties’ settlement agreement
Aug 13, 2019Looking Back: Salini v. Jordan tribunal was one of the first to chime in on a number of important jurisdictional issues; claimants ultimately left empty-handed
Aug 07, 2019Looking Back: Joy Mining v. Egypt tribunal declined jurisdiction over dispute on numerous accounts
Jul 19, 2019Looking Back: In Soufraki v. UAE, Fortier-chaired tribunal makes its own inquiry into the claimant’s professed nationality; at annulment stage, committee members diverged on fate of award
Jul 16, 2019Looking Back: Inceysa v. El Salvador tribunal sees a legality requirement for foreign investors and stresses international law principle of good faith
Jul 03, 2019Looking Back: In Telenor v. Hungary, arbitrators rejected bid to widen BIT’s jurisdiction via MFN clause, and also rejected expropriation claim (that fell within its jurisdiction) due to prima facie failure to prove loss
Jun 17, 2019Looking Back: In early BIT case, sole arbitrator declines jurisdiction over Philippe Gruslin’s claims arising out of mutual fund investments allegedly harmed by Malaysian currency controls
May 26, 2019Looking 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
May 23, 2019Looking 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
May 14, 2019Looking Back: In Libananco v. Turkey annulment, investor failed to overturn unfavorable award declining jurisdiction over $11 billion claim
Apr 25, 2019Looking Back: In RFCC v. Morocco, tribunal adopts objective test for investment under the ICSID Convention; annulment committee declines to annul award over immaterial contradiction in reasoning
Apr 21, 2019Looking Back: In MINE v. Guinea, state is held liable under joint venture contract, but award is annulled for failure to address key arguments from the respondent
Apr 17, 2019Looking Back: In Desert Line v. Yemen, ICSID tribunal confirms the power to award moral damages, and also canvases questions of investment acceptance and admission
Apr 16, 2019Looking Back (1 of 3): In CME and Lauder cases, two different UNCITRAL tribunals upheld jurisdiction over Czech media dispute despite parallel proceedings
Apr 10, 2019Looking Back (2 of 3): On the merits, two different UNCITRAL tribunals reached opposite results in dispute over Czech media investment
Apr 10, 2019Looking Back (3 of 3): In CME v. Czech Republic post-liability developments, the respondent challenged the tribunal’s decision before Swedish courts and sought reconsideration during the quantum phase
Apr 10, 2019Looking Back (1 of 3): Tribunal in Klockner v. Cameroon finds that imperfect contractual performance by investor justifies state’s decision to withhold its own performance
Mar 19, 2019Looking Back (2 of 3): Committee in Klockner v. Cameroon annuls award based on unsubstantiated “basic principle” of governing law
Mar 19, 2019Looking Back (3 of 3): Resubmission tribunal in Klockner v. Cameroon awards compensation to investor, and second ad hoc committee declines to annul award
Mar 19, 2019Looking Back: SGS v. Philippines tribunal adopts drastically different approach to meaning of umbrella clause than that of arbitrators in Pakistan case
Mar 05, 2019Looking Back: In newly-disinterred Houston Industries v. Argentina award, ICSID tribunal decided that it lacked power to grant discontinuance request in the face of Argentina’s insistence that costs still needed to be resolved
Mar 01, 2019Looking Back: In first case to grapple with BIT umbrella clause, SGS v. Pakistan tribunal adopted cautious approach
Feb 28, 2019Looking Back: In Olguin v. Paraguay, arbitrators found that a failure to supervise financial institutions did not engage the State’s liability under the applicable BIT
Feb 05, 2019Looking Back: At jurisdictional phase, CMS v. Argentina tribunal allows minority shareholders to bring claim under Argentina-US BIT
Jan 30, 2019Looking Back: On the merits, CMS tribunal finds Argentina liable for breaches of FET and umbrella clause, sparks debate on necessity defense; despite partial annulment and heavy criticism from annulment committee, the award stands
Jan 30, 2019Looking Back: In LG&E v. Argentina, tribunal accepts Argentina’s necessity defense, partially excusing it from liability, but still orders respondent to pay $50 million+ in damages
Jan 30, 2019Looking Back (1 of 2): In Fireman’s Fund v. Mexico, arbitrators applied NAFTA chapter 14 on financial services, and restricted jurisdiction to expropriation claims
Jan 16, 2019Looking Back (2 of 2): In first NAFTA arbitration related to financial services, arbitrators found that the discriminatory rescue of investors during a financial crisis did not amount to an unlawful expropriation
Jan 16, 2019Looking Back: LETCO Timber company prevailed against Liberia, and arbitrators considered issues of foreign control, specific performance and bad faith by non-appearing respondent
Jan 02, 2019Looking Back (1 of 2): In Feldman v. Mexico, an early NAFTA tribunal examined time-limits, pre-NAFTA claims and the status of permanent residents
Dec 10, 2018Looking Back (2 of 2): In Feldman v. Mexico, arbitrators unanimously rejected expropriation claim, but disagreed on shifting the burden of proving discrimination
Dec 10, 2018Looking Back: EnCana v. Ecuador tribunal splits on expropriation, disagreeing on role of domestic law; case raised early concerns over parallel arbitral appointments
Nov 23, 2018Looking Back: First Occidental v. Ecuador case sees discussion of comparators for discrimination, use of WTO law, and ‘fork-in-the-road’ clauses
Nov 23, 2018Looking Back (1 of 2): In Thunderbird v. Mexico, majority recognizes the concept of legitimate expectations, but finds that government shut-down of gambling activities did not violate NAFTA
Oct 30, 2018Looking Back (2 of 2): In Thunderbird v. Mexico separate opinion, Thomas Wälde ties legitimate expectations to FET standard, disagrees with majority on violation of legitimate expectations, and rejects “loser pays” approach
Oct 30, 2018Looking 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
Oct 14, 2018Looking Back (2 of 4): Amco Asia v. Indonesia tribunal’s finding that investment license was unlawfully revoked is knocked down by annulment committee that saw “insufficiently pertinent” reasons
Oct 14, 2018Looking Back (3 of 4): In Amco Asia v. Indonesia resubmission proceedings, second tribunal examines res judicata effects of first award and annulment decision
Oct 14, 2018Looking Back (4 of 4): In final Amco Asia v. Indonesia award, investors’ expulsion from hotel warrants no specific compensation, but license revocation does; ad hoc committee annuls a supplementary decision adopted without hearing the parties fully
Oct 14, 2018Looking Back (1 of 2): CSOB v. Slovakia arbitrators see a unique basis for jurisdiction, as BIT that had not entered into force is incorporated into parties’ contract
Sep 28, 2018Looking Back (2 of 2): CSOB v. Slovakia tribunal recommended suspension of domestic bankruptcy proceeding and rendered the largest damages award in ICSID history to that date
Sep 28, 2018Looking Back: In World Duty Free v. Kenya, arbitrators refused to enforce a government contract procured through bribery
Sep 09, 2018Looking Back: SOABI v. Senegal tribunal disagreed over meaning of “foreign control” language in ICSID Convention, and considered implications of contract’s non-compliance with local law
Aug 17, 2018Looking Back: In Atlantic Triton v. Guinea, arbitrators ordered claimant to post a bank guarantee to minimize risk of double recovery; tribunal saw nothing wrong with claimant’s attempt to get provisional measures in French court
Aug 07, 2018Looking Back: In Bayview v. Mexico, arbitrators considered whether Rio Grande River water rights under Texas law could be used as a basis for claiming that Mexican diversion of water was contrary to NAFTA
Jul 06, 2018Looking Back: In Canadian Cattlemen v. USA “mad cow” disease dispute, arbitrators held that foreigners without cross-border investments do not have access to investor-State arbitration under NAFTA Chapter 11
Jul 06, 2018Looking Back (1 of 2): UPS v. Canada case sparked ‘continuing conduct’ and time-bar controversies, and considered whether competition rules are contained in customary minimum standard
Jun 19, 2018Looking Back (2 of 2): At merits phase, UPS v. Canada tribunal split on discrimination, procurement and cultural industries exception
Jun 19, 2018Looking Back: unorthodox 2005 BIT award finally surfaces, as French investor persists with effort to collect on award that was set aside at seat; arbitrators had allowed claimant to sue Panamanian agency – rather than state – under BIT
Jun 07, 2018Looking Back: In Adriano Gardella v. Côte d’Ivoire, parties are barred from bringing claims of non-performance of a contract they had both effectively renounced
May 30, 2018Looking 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
May 18, 2018Looking Back: In Genin v. Estonia, arbitrators found that revocation of banking license did not violate investment treaty, taking into account context of post-communist economic transition
Apr 24, 2018Looking Back: In SPP v. Egypt pyramids saga, an ICSID tribunal is seized for the first time based on consent contained in an instrument of general application
Apr 09, 2018Looking Back: In SPP v. Egypt, state is ordered to pay compensation after cancelling pyramids tourism project to preserve cultural heritage
Apr 09, 2018Looking Back: long-confidential Benhamou v. Uruguay award is unearthed, revealing first known attempt at state-to-state BIT consultations over interpretive question, and tribunal’s handling of claims by beneficiary of trust
Apr 02, 2018Looking Back: In Nagel v. Czech Republic, arbitrators considered that the existence of an investment should be examined together with the merits, and held that a cooperation agreement was not an investment
Mar 19, 2018Looking Back: In Mihaly v. Sri Lanka, arbitrators found that pre-contractual expenditures did not qualify as an investment under the ICSID Convention
Mar 16, 2018Looking 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
Mar 05, 2018Looking Back: parallel tribunals chaired by Eric Schwartz and Marc Blessing render ICC awards in Construction Pioneers v. Ghana – finding denial of justice due to attempts to derail arbitration, and refusing to give effect to a statutory set-off
Feb 21, 2018Looking Back: in Loewen v. USA case, arbitrators saw $500 million Mississippi jury trial as a “disgrace” and a “miscarriage of justice” but ultimately did not hold USA liable for breach of NAFTA
Feb 14, 2018Looking Back: In GAMI v. Mexico NAFTA award, arbitrators upheld jurisdiction over a minority shareholder’s action, but dismissed claims for maladministration and expropriation
Jan 30, 2018Looking Back: In Generation Ukraine case, a failure to challenge actions of low-level officials before local courts undercuts BIT claim; tribunal wrestles with one of the first denial of benefits attempts, and many jurisdictional objections
Jan 18, 2018Looking Back: ADC v. Hungary established reference to customary international law on compensation for unlawful expropriation, outlined standards for due process, and set precedent for determining compensation at date of award
Jan 11, 2018Looking Back: At merits phase, arbitrators differ as to whether publisher who printed opposition campaign materials was victim of political retaliation by governing regime in Ukraine
Dec 28, 2017Looking 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
Dec 28, 2017Looking Back: In Tokios Tokeles case, majority upholds jurisdiction over claim against Ukraine brought by Lithuanian corporation that was owned by Ukrainian nationals, prompting chairman to resign
Dec 09, 2017Looking Back: In Tradex v. Albania case, arbitrators saw jurisdiction under domestic investment law, but claimant fails to prove expropriation or attributability to the state
Nov 13, 2017Looking Back: In first treaty claim under SCC rules, arbitrators in the long-opaque Biedermann case held Kazakhstan liable for breaching US-Kazak BIT, and rejected counterclaim on merits
Nov 01, 2017Looking Back: in Eastern Sugar v Czech Republic case, inconsistent regulation targeted at foreign investor leads to a breach of fair and equitable treatment standard
Oct 21, 2017Looking Back: MTD v. Chile tribunal used MFN to import entirely new obligations from other BITs and frowned on inconsistency between state agencies – but reduced damages due to investor’s own lack of due diligence
Oct 04, 2017Looking back: In Petrobart v. Kyrgyz Republic dispute, a sales contract does not constitute an investment under the Kyrgyz foreign investment law, but it later finds protection under the Energy Charter Treaty
Sep 25, 2017Looking Back: Fortier-chaired tribunal in Santa Elena v. Costa Rica found environmental objectives irrelevant to compensation under international law
Sep 17, 2017Looking Back: In pioneering Azinian v. Mexico award, NAFTA tribunal dismissed claim on its merits, chastised claimants for investor misconduct and offered early analysis of the denial of justice standard
Sep 06, 2017Looking Back: German investor, Franz Sedelmayer, was early-adopter of investment treaty arbitration, but had to engage in decade-long assets hunt against Russia
Aug 29, 2017Looking Back: In ADF v. USA arbitration, “Buy America” requirements lead arbitrators to take first look at NAFTA’s government procurement exception, and to consider scope of minimum standard of treatment
Aug 24, 2017Looking Back: (1 of 3) Cargill v. Poland UNCITRAL award surfaces, and arbitrators are seen to reckon with various jurisdictional objections and the implications of amendments made to U.S.-Poland investment treaty
Aug 21, 2017Looking Back: (2 of 3) In Cargill v. Poland, Tribunal finds that sweetener quotas set by Poland – and by European Union – breached national treatment obligation
Aug 21, 2017Looking Back: (3 of 3) In Cargill v. Poland, respondent breached transparency requirement, but performance requirements did not rise to level of treaty breach
Aug 21, 2017Looking Back: in Wena Hotels v. Egypt case, tribunal rejected corruption allegations and found an expropriation even though hotels were later returned to investor
Aug 08, 2017Looking 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
Aug 01, 2017Looking Back: Methanex tribunal deferred to scientific study undertaken by University of California, and rejected jurisdiction after finding no breaches on the merits
Aug 01, 2017Looking Back: Vivendi v. Argentina saga explored the relation between contract and treaty claims
Jul 05, 2017Looking Back: In resubmitted Vivendi proceedings following annulment, tribunal confirms jurisdiction and finds Argentina in breach of FET
Jul 05, 2017Looking Back: In Impregilo v Pakistan case, arbitrators needed to grapple with distinction between treaty/contract claims and scope of umbrella clause
May 22, 2017Looking Back: Turkey’s first ICSID case ends with FET breach for failure to create stable and predictable legal framework for PSEG, but compensation is limited to amount invested
May 03, 2017Looking Back: In SD Myers v. Canada case, arbitrators rule that temporary ban on cross-border hazardous waste shipment had protectionist intent
Apr 26, 2017Looking Back: At damages phase, arbitrators in SD Myers v. Canada case quantified foregone income due to border closure; role of NGO-driven political risk also touched upon
Apr 26, 2017Looking Back: Saluka v. Czech Republic tribunal considered jurisdiction over counterclaims, and declined to hold claimant accountable for alleged misdeeds of parent company
Apr 03, 2017Looking Back: At merits phase, Saluka v. Czech Republic discusses the role of regulatory powers in establishing expropriation and FET breaches
Apr 03, 2017Looking Back: Ethyl v. Canada case drew early public attention to previously obscure arbitration process, and settled after tribunal’s jurisdiction ruling
Mar 21, 2017Looking Back: Eureko v. Poland case triggered early debates over role of domestic law in investment arbitration, and grappled with contract-treaty distinction
Feb 27, 2017Looking Back: in Waste Management v. Mexico, two tribunals discuss waivers, res judicata, the meaning of Fair and Equitable Treatment, and much else
Feb 27, 2017Looking Back: in first award involving the US under NAFTA Chapter 11, tribunal found no denial of justice against Canadian investor Mondev
Feb 17, 2017Looking Back: Tecmed v. Mexico breaks ground in adopting expansive reading of the Fair and Equitable Treatment and upholding protection of investors’ “legitimate expectations”
Feb 12, 2017Looking Back: Preliminary rulings in Maffezini v. Spain kicked off debate over MFN and dispute settlement, but also addressed attribution and security for costs
Feb 06, 2017Looking Back: Merits award in Maffezini v. Spain award offered early confirmation that BITs are not insurance policies
Feb 06, 2017Looking Back: Metalclad v. Mexico tribunal finds expropriation and FET breaches in landfill approvals process
Jan 25, 2017Looking Back: in second ICSID case arising out of an investment treaty, arbitrators held Zaire liable for U.S. investor’s losses during soldiers’ rampage
Jan 18, 2017Looking Back: In AMT v. Zaire, arbitrators differ as to relevance of BIT provision for non-combat losses at hands of armed forces; damages valuation is opaque
Jan 18, 2017Looking Back: in first known treaty-based investor-state arbitration, AAPL v. Sri Lanka, tribunal saw a failure to protect investment that was overrun during counter-insurgency
Jan 15, 2017