tribunal dismisses claims brought against Indonesia based on forged mining licences Churchill Mining PLC and Planet Mining Pty Ltd v. Republic of Indonesia, ICSID Case No. ARB/12/14 and ICSID Case No. ARB/12/40 Inaê Siqueira de Oliveira [*] After rendering separate decisions on jurisdiction¾one for the case brought by British company Churchill Mining PLC under the United […]
Churchill Mining PLC and Planet Mining Pty Ltd v. Republic of Indonesia,Case No. ARB/12/14 and ICSID Case No. ARB/12/40 After rendering separate decisions on jurisdiction—one for the case brought by British company Churchill Mining PLC under the United Kingdom–Indonesia bilateral investment treaty ( ), and another for Australian company Planet Mining Pty. Ltd.’s case under […]
Pac Rim Cayman LLC v. Republic of El Salvador,Case No. ARB/09/12 On October 14, 2016, a tribunal at the International Centre for Settlement of Investment Disputes (ICSID) dismissed on their merits all claims by Pac Rim Cayman LLC (Pac Rim) against El Salvador. The tribunal ordered the mining company—currently owned by Australian-Canadian OceanaGold—to […]
Venezuela to Pay Us$1 Billion For Expropriating Canadian Mining Company’s Investment
Tribunal dismisses Clause in GATS as a means of importing Senegal’s consent to arbitration from third party
tribunal deemed acts of Polish Agricultural Property Agency not attributable to Poland
Claimant not considered Investor due to interpretation of “Seat” under Cyprus–Montenegro BIT
Ecuador’s Levy on extraordinary oil profits at a 99% rate has breached Murphy’s legitimate expectations, decides PCA tribunal
Ecuador ordered by PCA tribunal to pay $24 million to Canadian Mining Company
ICSID tribunal dismisses MFN clause in WTO GATS as a means of importing Senegal’s consent to arbitration from third party BIT
Menzies Middle East and Africa S.A. and Aviation Handling Services International Ltd. v. Republic of Senegal,Case No. ARB/15/21- Suzy H. Nikièma
CEAC Holdings Limited v Montenegro,Case No. ARB(AF)/14/8 – Maria Florencia Sarmiento
UNASUR Centre for the Settlement of Investment Disputes: Comments on the Draft Constitutive Agreement
The future operation of the investment dispute settlement facility of the Union of South American Nations is likely to generate scepticism, as it could undermine international standards in favour of regional parameters and lead to increased instability in the region. Alternatively, it could enhance the legitimacy and popularity ofmechanisms in UNASUR member states. What are the procedural and substantive novelties contained in the Draft Constitutive Agreement?
The long-expected final award has been rendered in the high-profile case initiated by tobacco giant Philip Morris in early 2010 against Uruguay over its tobacco control measures.
Philip Morris Brands Sàrl, Philip Morris Products S.A. and Abal Hermanos S.A. v. Oriental Republic of Uruguay,Case No. ARB/10/7
ICSID tribunal upholds Panama’s abuse of process objection; Transglobal to pay arbitration costs and most of Panama’s legal expenses
In the proceeding brought by Transglobal Green Energy, LLC (a U.S.-based company) and Transglobal Green Panama S.A. (a Panama-based company) against Panama under the United States–Panama bilateral investment treaty (), an tribunal accepted Panama’s abuse of process objection.
Venezuela ordered to pay US$1.202 billion plus interest to Canadian mining company Crystallex for FET breach and expropriation
In a 273-page award dated April 4, 2016, a tribunal at the Additional Facility (AF) of the International Centre for Settlement of Investment Disputes () ordered Venezuela to pay US$1.202 billion plus interest to Canadian company Crystallex International Corporation (Crystallex).
An arbitral tribunal at the International Centre for Settlement of Investment Disputes () has issued its award on the claims by a Turkish company against Turkmenistan.
On March 24, the International Centre for Settlement of Investment Disputes () registered (Case No. ARB/16/9) a request for arbitration filed by U.S. telecom company Italba against Uruguay.
Tenaris S.A. and Talta-Trading e Marketing Sociedade Unipessoal LDA v. Bolivarian Republic of Venezuela,Case No. ARB/11/26
In a decision dated December 21, 2015, a tribunal at the International Centre for Settlement of Investment Disputes () ruled that it lacked jurisdiction to hear a case brought by Société civile immobilière de Gaëta (Gaëta) against Guinea under the Guinean Investment Code.
Slovenia is condemned to pay €20 million in damages and US$10 million in costs to Croatian national electric company
An award rendered on December 17, 2015 by an arbitral tribunal constituted under the auspices of the International Centre for Settlement of Investment Disputes () added a new—and apparently final—chapter to a nearly 20-year-old conflict between the governments of Croatia and Slovenia over the supply of electricity generated by the Krško Nuclear Power Plant (Krško NPP), located in Slovenia.
The only known investment treaty arbitration against Equatorial Guinea fails on jurisdictional grounds
A majority tribunal at the Additional Facility (AF) of the International Centre for Settlement of Investment Disputes () dismissed the case of Spanish construction company Grupo Francisco Hernando Contreras, S.L. (Contreras Group) against Equatorial Guinea, in an award dated December 4, 2015.
In a 318-page award issued July 28, 2015 but only published February 2016, a tribunal at the International Centre for Settlement of Investment Disputes () ordered Zimbabwe to return farms it seized without compensation in 2005.
On January 19, 2016, experts from the Union of South American Nations (UNASUR) met in Montevideo, Uruguay, to finalize agreements regarding the proposed regional centre for the settlement of investment disputes.
ICSID tribunal dismisses final claim for compensation in relation to Hungary’s 2008 termination of power purchase agreement
Electrabel S.A. v. Republic of Hungary,Case No. ARB/07/1
Adel A. Hamadi Al Tamimi v. Sultanate of Oman,Case No. ARB/11/33
ICSID tribunal declines jurisdiction in case against Macedonia and orders investor to reimburse 80% of Macedonia’s legal fees and expenses
Guardian Fiduciary Trust Ltd, f/k/a Capital Conservator Savings & Loan Ltd v. Former Yugoslav Republic of Macedonia,Case No. ARB/12/31
Quiborax S.A. and Non-Metallic Minerals S.A. v. Plurinational State of Bolivia (Case No. ARB/06/2)
Ping An Life Insurance Company of China, Limited and Ping An Insurance (Group) Company of China, Limited v. Kingdom of Belgium,Case No. ARB/12/29
This annual publication provides an overview of recent trends and key issues in international investment law and policy.
Unanimous ICSID tribunal dismisses expropriation claim due to Papua New Guinea’s lack of written consent to arbitrate
PNG Sustainable Development Program Ltd. v. Independent State of Papua New Guinea,Case No. ARB/13/33
Government bonds not covered, despite broad definition of “investment” in Slovakia–Greece BIT; tribunal dismisses claims against Greece
Poštová Banka, a.s. and Istrokapital SE v. The Hellenic Republic,Case No. ARB/13/8
Looking to Venezuela’s Investment Law, majority finds that Venoklim was not a foreign investor and dismisses case against Venezuela; claimant-appointed arbitrator dissents
Venoklim Holding B.V. v. Bolivarian Republic of Venezuela,Case No. ARB/12/22
Majority of ICSID tribunal finds no fair and equitable treatment violation by Albania in petroleum dispute
Mamidoil Jetoil Greek Petroleum Products Societe S.A. v. The Republic of Albania,Case No. ARB/11/24
The system of international investment arbitration suffers from serious flaws. In South America, more than other regions, these failings are apparent from direct experience. Perhaps because so many countries in the region have faced multiple international investment arbitrations based on multi-million dollar claims for compensations, a number of alternatives to the current system of investment dispute resolution have been proposed by governments, multilateral institutions and academics.
It is quite common in investment arbitration for the respondent State to include in its defense to treaty claims one or more criticisms of the investor’s underlying conduct. Yet while such arguments feature prominently in State defenses, they are rarely framed as counterclaims seeking affirmative relief. The reason may lie in an instinctive preference by States to pursue any affirmative claims in their own courts. But it may also lie in perceived limits to the jurisdiction of international tribunals to hear State counterclaims.
Two recentdecisions have reached entirely different conclusions on the issue of jurisdiction over State counterclaims. This essay touches briefly on certain jurisprudential and policy factors that may explain the divergent results and frame future cases for further analysis.
US$1.76 billion dollar award levied against Ecuador in dispute with Occidental; tribunal split over damages Occidental Petroleum Corporation and Occidental Exploration and Production Company v. The Republic of Ecuador,Case No. ARB/06/11 Damon Vis-Dunbar The Republic of Ecuador has been ordered to pay US$1,769,625,000 billion in damages—the largest award to be handed down […]
Majority declines jurisdiction in claim against Argentina over domestic litigation requirement Daimler Financial Services AG v. Argentine Republic,Case No. ARB/05/1 Damon Vis-Dunbar A claim against Argentina by a subsidiary of the German automotive firm Daimler A.G. has failed on its merits because the claimant did not first bring the dispute to court in […]
South Africa begins withdrawing from-member BITs South Africa has terminated its bilateral investment treaty with Belgium and Luxembourg, and intends to phase out other treaties with European countries. In a September 7th letter to Belgium’s Ambassador in Pretoria, South Africa’s Minister of International Relations denunciated the treaty, in accordance with the treaty’s termination clauses […]
From October 1-5, 2012, a working group of the United Nations Commission on International Trade Law met in Vienna to continue work on how to ensure transparency in treaty-based investor-state arbitration. It was the working group’s fifth week-long meeting on the topic, but will not be the last.
National investment codes may function as potential sources of international investment law. In other words, states may make unilateral undertakings within the framework of national investment legislations and, as a result, be considered as having “created international obligation[s]”. The addressees of national investment legislations are foreign investors as well as the state that is itself […]
Vattenfall launches new claim against Germany The Swedish state-run energy firm Vattenfall has launched a second claim against Germany. The claim stems from Germany’s May 2011 decision to phase-out its nuclear power plants, in which 8 plants have been shuttered and the remaining 9 plants to be closed over the next decade. While Germany has […]
Australia to reject investor-state dispute resolution in TPPA The Australian government will not sign on to investor-state dispute resolution provisions in the Trans-Pacific Partnership Agreement (TPPA), according to an Australian government official. “We have made it clear that we will no longer be seeking investor-state dispute settlement provisions in trade agreements,” said the Australian Minister […]
In January 2012, the Bolivarian Republic of Venezuela denounced theConvention, becoming the third country – after Bolivia and Ecuador – to do so. The exit from the global forum for the settlement of investment disputes signals these countries’ apparent loss of faith in the system and raises questions about the Convention’s fitness for […]
A dispute will only fall within the jurisdiction of the International Centre for Settlement of Investment Disputes () if it directly arises out of an ‘investment’, as is provided by Article 25(1) of the Convention for the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention). However, not only does the ICSID Convention fail to provide any definition of what constitutes an ‘investment’, the drafters of the ICSID Convention, in fact, made an express decision not to include such a definition. This absence has given rise to interesting issues of interpretation as ICSID tribunals have sought to arrive at an understanding of how the term ‘investment’ should be properly understood for the purposes of the ICSID Convention.
As members of the Eurozone are now acutely aware, the lack of a sovereign debt restructuring regime is one of the most glaring gaps in the international financial architecture. That said, this summer’s decision by a tribunal of the International Centre for Settlement of Investment Disputes (), which grants a bilateral investment treaty ( ) jurisdiction […]
Arbitrator sharply critical of majority decision in Italian bondholder claim against Argentina Abaclat and Others (Case formerly known as Giovanna a Beccara and Others) v. Argentine Republic,Case No. ARB/07/5 Damon Vis-Dunbar Professor Georges Abi-Saab has delivered a sharply worded dissent against a decision that granted jurisdiction to an ICSID case involving tens of […]
Philip Morris files for arbitration over intellectual property dispute with Australia The tobacco company Philip Morris filed for arbitration on 21 November 2011, claiming the government of Australia’s regulations on cigarette branding breach the Hong Kong-Australia bilateral investment treaty. The announcement arrived on the same day that the Australian Parliament passed legislation that bans most […]
Swiss claimant fails jurisdictional stage for not qualifying as an ‘investor’ Alps Finance and Trade AG v. Slovak Republic Damon Vis-Dunbar A claim against the government of Slovakia has failed after a three-member tribunal declined jurisdiction. The tribunal determined that the claimant was not an “investor” as intended by the Switzerland-Slovakia bilateral investment treaty. In […]
Philip Morris v. Uruguay: Will investor-State arbitration send restrictions on tobacco marketing up in smoke?
For nearly two decades, the tobacco industry has used international investment rules to challenge governmentrestrictions on cigarette marketing. In 1994, R.J. Reynolds Tobacco Company threatened to bring a claim under the North American Free Trade Agreement’s () investment chapter as part of its successful lobbying campaign against Canada’s proposed “plain packaging” legislation, which would have […]
Georgia loses dispute with Greek and Israeli oil investors Ioannis Kardassopoulos and Ron Fuchs v. The Republic of Georgia (Case Nos. ARB/05/18 and ARB/07/15) Martin D. Brauch Two oil traders have been awarded more than US$45 million each in damages from the Republic of Georgia in an ICSID award that advances a broad interpretation […]
One fundamental principle of investor-State arbitration is the ability of parties to have their disputes resolved by independent and impartial arbitrators. In order to ensure adherence to this principle, laws and rules governing investor-State arbitrations grant parties the right to challenge arbitrators lacking these qualifications. Given the importance of ensuring arbitrator independence and impartiality, and as evidenced by the recent decision in and subsequent commentary on Vivendi v. Argentina, practitioners and stakeholders in investor-State arbitrations are devoting significant efforts to defining the substantive standards warranting arbitrator challenges, and to understanding what those standards require in practice.
Ignacio Torterola In October, State delegations are expected to discuss the issue of transparency in theRules of Arbitration. Ignacio Torterola, Liaison at the Argentine Embassy in Washington, DC, and Argentine Delegate to the UNCITRAL Working Group II, explains why greater openness would benefit the investment arbitration system. Some preliminary considerations Working Group […]
By Fernando Cabrera Diaz May 11, 2010 Tobacco giant Philip Morris International (PMI) has initiated anarbitration against Uruguay over new rules requiring that 80% of cigarette pack surfaces be devoted to graphic warnings of the dangers associated with smoking. The company alleges that the labeling requirements and recent tax increase harm its investments […]
By Elizabeth Whitsitt May 11, 2010 On March 19, 2010 two members of anarbitral tribunal – the Honourable Davis R. Robinson (President) and Dr. Stanimir A. Alexandrov – dismissed the Ukraine’s challenge to the tribunal’s third member, Dr. Yoram Turbowicz. Arbitral proceedings between Alpha Projektholding GMBH (Alpha) and the Ukraine began in 2007 […]