Looking Back

Recent Articles

• Looking 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, 2018

• Looking Back: In SPP v. Egypt, state is ordered to pay compensation after cancelling pyramids tourism project to preserve cultural heritage

  Apr 09, 2018

• Looking 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 beneficary of trust

  Apr 02, 2018

• Looking 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, 2018

• Looking Back: In Mihaly v. Sri Lanka, arbitrators found that pre-contractual expenditures did not qualify as an investment under the ICSID Convention

  Mar 16, 2018

• 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

  Mar 05, 2018

• Looking 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, 2018

• Looking 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, 2018

• Looking 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, 2018

• Looking 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, 2018

• Looking 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, 2018

• Looking 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, 2017

• 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

  Dec 28, 2017

• Looking 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, 2017

• Looking 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, 2017

• Looking 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, 2017

• Looking 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, 2017

• Looking 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, 2017

• Looking 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, 2017

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

  Sep 17, 2017

• Looking 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, 2017

• Looking 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, 2017

• Looking 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, 2017

• Looking 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, 2017

• Looking 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, 2017

• Looking 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, 2017

• Looking 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, 2017

• 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

  Aug 01, 2017

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

  Aug 01, 2017

• Looking Back: Vivendi v. Argentina saga explored the relation between contract and treaty claims

  Jul 05, 2017

• Looking Back: In resubmitted Vivendi proceedings following annulment, tribunal confirms jurisdiction and finds Argentina in breach of FET

  Jul 05, 2017

• Looking Back: In Impregilo v Pakistan case, arbitrators needed to grapple with distinction between treaty/contract claims and scope of umbrella clause

  May 22, 2017

• Looking 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, 2017

• Looking Back: In SD Myers v. Canada case, arbitrators rule that temporary ban on cross-border hazardous waste shipment had protectionist intent

  Apr 26, 2017

• Looking 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, 2017

• Looking Back: Saluka v. Czech Republic tribunal considered jurisdiction over counterclaims, and declined to hold claimant accountable for alleged misdeeds of parent company

  Apr 03, 2017

• Looking Back: At merits phase, Saluka v. Czech Republic discusses the role of regulatory powers in establishing expropriation and FET breaches

  Apr 03, 2017

• Looking Back: Ethyl v. Canada case drew early public attention to previously obscure arbitration process, and settled after tribunal’s jurisdiction ruling

  Mar 21, 2017

• Looking Back: Eureko v. Poland case triggered early debates over role of domestic law in investment arbitration, and grappled with contract-treaty distinction

  Feb 27, 2017

• Looking Back: in Waste Management v. Mexico, two tribunals discuss waivers, res judicata, the meaning of Fair and Equitable Treatment, and much else

  Feb 27, 2017

• Looking Back: in first award involving the US under NAFTA Chapter 11, tribunal found no denial of justice against Canadian investor Mondev

  Feb 17, 2017

• Looking 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, 2017

• Looking 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, 2017

• Looking Back: Merits award in Maffezini v. Spain award offered early confirmation that BITs are not insurance policies

  Feb 06, 2017

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

  Jan 25, 2017

• Looking 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, 2017

• Looking 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, 2017

• Looking 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