Looking Back
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Recent Articles
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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
May 13, 2022 -
Looking Back: ICSID tribunal hearing dispute between Algeria and Italian water dam investors declined jurisdiction over consortium, emphasizing risk of rendering an unenforceable award
Apr 11, 2022 -
Looking Back: ICJ’s Nottebohm Judgement coined the term “real and effective nationality”, impacting questions of nationality in arbitrations brought by individual investors
Feb 23, 2022 -
Looking Back: ICSID tribunal in Caratube v. Kazakhstan (1) examined treaty provision providing conditional consent to treat local companies as foreign investors, and declined jurisdiction after finding that these conditions were not fulfilled
Feb 11, 2022 -
Looking Back: ICSID tribunal in Jan de Nul v. Egypt found that court judgment had crystallized a new dispute, and discussed distinction between treaty claims and contract claims
Jan 14, 2022 -
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
Jan 07, 2022 -
Looking Back: Gas Natural v. Argentina tribunal upheld jurisdiction over claims for derivative losses and allowed the bypassing of local litigation requirements through MFN provision
Nov 26, 2021 -
Looking Back: Pan American v. Argentina tribunal found that umbrella clause only applied to commitments made by the state as a sovereign
Oct 29, 2021 -
Looking Back: Exxon and Hunt Oil failed to persuade ICC tribunal that lucrative Yemeni oil concession was extended despite lack of parliamentary ratification
Oct 20, 2021 -
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
Sep 30, 2021 -
Looking Back: Merrill & Ring v. Canada tribunal found that custom had evolved to favour investors, but that no breach could arise without harm to claimant
Sep 14, 2021 -
Looking Back: High-profile tribunal hearing one of Venezuela’s earliest ICSID cases discussed foreign control requirement, force majeure, lost profit, and compound interest
Sep 02, 2021 -
Looking Back: Saipem v. Bangladesh tribunal upheld jurisdiction over claims arising out of a commercial arbitration award, and granted provisional measures
Aug 12, 2021 -
Looking Back: Arbitrators in InterTrade v. Czech Republic delved into principles of attribution to the state – with the tribunal splitting on governmental authority analysis
Jul 30, 2021 -
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
Jul 23, 2021 -
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
Jul 06, 2021 -
Looking Back: Lanco v. Argentina tribunal rejected jurisdictional objections based on forum selection clause and derivative shareholder claims
Jul 01, 2021 -
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
Jun 16, 2021 -
Looking Back: Telefonica v. Argentina tribunal rejected jurisdictional objections based on derivative shareholder claims, forum selection clause, and local litigation requirement
May 31, 2021 -
Looking Back: On jurisdiction, tribunals hearing trifecta of Yukos cases deemed the ECT provisionally applicable in its entirety despite Russia’s lack of ratification
May 21, 2021 -
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
Apr 28, 2021 -
Looking Back: Tribunal in Georgia’s first known BIT case grappled with the ECT’s provisional application, and examined an alleged failure to comply with local law
Apr 16, 2021 -
Looking Back: Latvia’s first known BIT case saw tribunal grappling with legality requirement half a decade before Inceysa and Fraport decisions; arbitrators ultimately ruled in favour of claimant in shipping dispute
Mar 30, 2021 -
Looking Back: In Amto v. Ukraine, arbitrators discussed denial of benefits under the ECT, and found that failure by state-owned company to pay outstanding debt did not give rise to a treaty breach
Mar 19, 2021 -
Looking Back: OKO Pankki v. Estonia solidified legitimate expectations as central to FET, found a continuing breach by the state, and reinforced awards of compound interest in investment treaty arbitration
Mar 09, 2021 -
Looking Back: Tribunal in African Holding v. DRC ruled on corruption allegations, transfer of investment, and date of dispute
Feb 18, 2021 -
Looking Back: Tribunal in Champion Trading v. Egypt ruled that dual nationals cannot take their home state to ICSID arbitration, but may bring claims through a foreign company under their control
Feb 11, 2021 -
Looking Back: In Fraport v. Philippines (1), a tribunal majority declined jurisdiction after deciding that an airport concession investment had been made in violation of local law
Jan 27, 2021 -
Looking Back: Tribunal in Phoenix v. Czech Republic declined jurisdiction after finding that the investment had not been made in good faith
Jan 12, 2021 -
Looking Back: Procedural decisions in Glamis Gold v. USA established prominent test for bifurcation, accepted amicus curiae submissions, and considered privilege over inadvertently produced documents
Jan 05, 2021 -
Looking Back: Arbitrators in Plama v. Bulgaria grappled with denial of benefits and the applicability of MFN clauses to dispute resolution
Dec 24, 2020 -
Looking Back: In controversial award, sole arbitrator in MHS v. Malaysia declined jurisdiction for lack of contribution to the host state’s economy
Dec 11, 2020 -
Looking Back: Tribunal in SIBG v. Guinea found that the claimant did not fulfill ICSID’s foreign control requirement
Dec 01, 2020 -
Looking Back: Tribunal in Salini v. Morocco outlined objective definition of ‘investment’ under the ICSID Convention
Nov 23, 2020 -
Looking Back: Tribunal majority in Berschader v. Russia declined jurisdiction over indirect investments and refused to extend MFN clause to dispute settlement
Nov 16, 2020 -
Looking Back: UNCITRAL tribunal in Biloune v. Ghana found creeping expropriation of resort complex, but declined jurisdiction over denial of justice and human rights claims
Nov 06, 2020 -
Looking Back: Arbitrators in Fedax v. Venezuela gave an early interpretation of the notion of protected investment under the ICSID Convention
Oct 13, 2020 -
Looking Back: First Sempra v. Argentina tribunal read FET standard as gap-filler in the context of investment protection; award was later set aside
Sep 22, 2020 -
Looking Back: Camuzzi v. Argentina (2) tribunal addressed issues of reflective loss, forum selection clauses, and ongoing negotiations
Sep 22, 2020 -
Looking Back: In Enron v. Argentina, arbitrators discussed police powers and necessity exception in times of economic crisis
Sep 22, 2020 -
Looking Back: In Pey Casado v. Chile (1), arbitrators weighed in on dual nationality and ratione temporis jurisdictional objections, and ultimately found Chile liable for denial of justice
Jul 12, 2020 -
Looking Back: Tribunals in Trans-Global Petroleum v. Jordan and Brandes v. Venezuela provided the first known interpretations of ICSID Arbitration Rule 41(5)
Jun 29, 2020 -
Looking Back: In Julian Crespo v. Poland, ICC tribunal offered an early analysis of the arbitrators’ power to order security for costs; on the merits, a majority found the state liable for a breach of the Poland-Spain BIT, but declined to award any damages
Jun 12, 2020 -
Looking Back: ICSID tribunal in Middle East Cement v. Egypt found a partial expropriation of cement import business, and criticised state failures to notify claimant of ship seizure and auction
May 06, 2020 -
Looking Back: In its first known BIT case, Moldova defeated an indirect expropriation claim, as the UNCITRAL tribunal hearing the dispute weighed in on the state’s right to regulate
Apr 18, 2020 -
Looking Back: Westinghouse v. Philippines ICC tribunal rejected corruption defence and upheld jurisdiction, but case was settled before US court weighed in on separate corruption allegation
Apr 07, 2020 -
Looking Back: In Noble Ventures v. Romania, an early ICSID tribunal adopted an expansive interpretation of an umbrella clause in the US-Romania BIT, but ultimately rejected the case on the merits
Mar 04, 2020 -
Looking Back: In Parkerings v. Lithuania, tribunal reasoned that a breach of contract could only amount to a treaty breach if the investor had previously sought reparation before local courts
Feb 24, 2020 -
Looking Back: in Sistem Muhendislik v. Kyrgyzstan, tribunal upheld jurisdiction under both the Kyrgyzstan-Turkey BIT and local investment law, but declined jurisdiction on the basis of underlying contract
Feb 09, 2020 -
Looking Back: In Siemens v. Argentina, arbitrators used MFN to bypass local litigation requirement and found an expropriation of contractual rights, but ultimately saw their award abandoned as part of Siemens’ settlement of bribery scandal
Feb 03, 2020 -
Looking Back: NAFTA tribunal declined to consolidate parallel investor claims against Mexico, citing confidentiality concerns between fiercely competitive claimants and limited risk of inconsistent decisions
Jan 15, 2020 -
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
Jan 06, 2020 -
Looking Back: Pope & Talbot v. Canada offered influential discussions of indirect expropriation and national treatment, and famously viewed 2001 FTC Statement as an amendment to NAFTA
Dec 15, 2019 -
Looking Back: In previously-unseen Indonesia v. Newmont award, Indonesia took investor before international tribunal to obtain performance of divestment obligation
Nov 20, 2019 -
Looking Back: Alpha v. Ukraine tribunal openly denounced Salini criteria and found state liable for expropriation
Nov 02, 2019 -
Looking Back: Canfor/Tembec/Terminal softwood lumber arbitrations provided early engagement with questions of parallel NAFTA Chapter 11 proceedings
Oct 10, 2019 -
Looking 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, 2019 -
Looking 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, 2019 -
Looking 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, 2019 -
Looking 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, 2019 -
Looking 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, 2019 -
Looking Back: Joy Mining v. Egypt tribunal declined jurisdiction over dispute on numerous accounts
Jul 19, 2019 -
Looking 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, 2019 -
Looking Back: Inceysa v. El Salvador tribunal sees a legality requirement for foreign investors and stresses international law principle of good faith
Jul 03, 2019 -
Looking 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, 2019 -
Looking 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, 2019 -
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
May 23, 2019 -
Looking 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, 2019 -
Looking Back: In Libananco v. Turkey annulment, investor failed to overturn unfavorable award declining jurisdiction over $11 billion claim
Apr 25, 2019 -
Looking 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, 2019 -
Looking 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, 2019 -
Looking 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, 2019 -
Looking Back (1 of 3): In CME and Lauder cases, two different UNCITRAL tribunals upheld jurisdiction over Czech media dispute despite parallel proceedings
Apr 10, 2019 -
Looking Back (2 of 3): On the merits, two different UNCITRAL tribunals reached opposite results in dispute over Czech media investment
Apr 10, 2019 -
Looking 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, 2019 -
Looking 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, 2019 -
Looking Back (2 of 3): Committee in Klockner v. Cameroon annuls award based on unsubstantiated “basic principle” of governing law
Mar 19, 2019 -
Looking 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, 2019 -
Looking Back: SGS v. Philippines tribunal adopts drastically different approach to meaning of umbrella clause than that of arbitrators in Pakistan case
Mar 05, 2019 -
Looking 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, 2019 -
Looking Back: In first case to grapple with BIT umbrella clause, SGS v. Pakistan tribunal adopted cautious approach
Feb 28, 2019 -
Looking 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, 2019 -
Looking Back: At jurisdictional phase, CMS v. Argentina tribunal allows minority shareholders to bring claim under Argentina-US BIT
Jan 30, 2019 -
Looking 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, 2019 -
Looking 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, 2019 -
Looking 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, 2019 -
Looking 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, 2019 -
Looking 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, 2019 -
Looking 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, 2018 -
Looking Back (2 of 2): In Feldman v. Mexico, arbitrators unanimously rejected expropriation claim, but disagreed on shifting the burden of proving discrimination
Dec 10, 2018 -
Looking Back: EnCana v. Ecuador tribunal splits on expropriation, disagreeing on role of domestic law; case raised early concerns over parallel arbitral appointments
Nov 23, 2018 -
Looking Back: First Occidental v. Ecuador case sees discussion of comparators for discrimination, use of WTO law, and ‘fork-in-the-road’ clauses
Nov 23, 2018 -
Looking 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, 2018 -
Looking 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, 2018 -
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
Oct 14, 2018 -
Looking 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, 2018 -
Looking 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, 2018 -
Looking 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, 2018 -
Looking 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, 2018 -
Looking 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, 2018