AbstractGiven the breadth of topics in the Articles on State Responsibility, the guidance on interest contained in Article 38 could be easily overlooked. Yet discussions on this subject featured prominently in the work of the International Law Commission (ILC) spanning nearly four decades. Article 38 is also intrinsically relevant to international investment arbitration where the coveted remedy is

AbstractThe recent practice of States to amend, suspend or terminate investment treaties has moved questions of potential ‘post-termination responsibility’ to the forefront of the contemporary legal discourse in international investment law. Although States have often included provisions in their respective treaties to regulate post-termination protection of investments, some aspects of the aftermath

Few issues have proven to be as vexing to courts and tribunals as the matter of causation. The causation inquiry calls for nuanced exploration of sometimes metaphysical concepts—overdetermination, novus actus interveniens, probability—while serving the practical function of balancing over-deterrence against the enforcement of legal rights. Indeed, as Aristotle famously instructs: we do not know something

AbstractAn investor–State tribunal formed under a bilateral investment treaty (BIT) may be called upon to determine its jurisdiction ratione temporis based on various ‘critical dates’ such as: the date of entry into force of the BIT; the date when the investment was made; the date when the investor acquired the requisite nationality; the date of the alleged breach; the date when the investor first

DumberryPatrick, A Guide to General Principles of Law in International Investment Arbitration (Oxford University Press 2020), ISBN: 9780198857075, pp 416 (print copy £132.50)

ShirlowEsmé, Judging at the Interface: Deference to State Decision-Making Authority in International Adjudication (Cambridge University Press 2021), ISBN: 978-1-108-49097, pp 376, £95.00

First of all, let me thank the organizers of this event, who have invited me to give this year’s Freshfields Lecture,2 which I consider a great honor as well as a difficult challenge. Why a difficult challenge? Because I do not want to say too little, as I like to share my thoughts and not hide behind a lukewarm and banal speech. But neither should I say too much, thus putting the audience’s dinner

Emmanuel Gaillard and Ilija Mitrev Penushliski. State Compliance with Investment Awards. ICSID Review, 2020. doi:10.1093/icsidreview/siaa034

In a judgment dated 19 February 2020 (Judgment), the United Kingdom (UK) Supreme Court drew the curtain on the enforcement proceedings in the Micula v Romania Award (Award) in the UK. The court found in favor of the Claimants and lifted the stay of enforcement of the International Centre for Settlement of Investment Disputes (ICSID) award, holding that the stay conflicted with the UK’s obligations

In August 2011, an International Centre for Settlement of Investment Disputes (ICSID) Tribunal in Abaclat v Argentina considered and upheld, for the first time, an investment treaty tribunal’s jurisdiction to hear claims pursued jointly by a ‘mass’ of approximately 60,000 claimants (‘mass claims’).3 Two subsequent Tribunals deciding cases pursued by smaller pools of 119 and 183 claimants—Ambiente Ufficio

This article examines the application of ARSIWA’s provisions on attribution of conduct to a State in international investment law and arbitration. In particular, it critically analyses the rules of attribution of conduct codified in ARSIWA Articles 4 (conduct of organs of a State), 5 (conduct of persons or entities exercising elements of governmental authority), 7 (excess of authority or contravention

GómezKatia FachGourgourinisAnastasiosTitiCatharine (eds), European Yearbook of International Economic Law. Special Issue: International Investment Law and Competition Law (Springer 2020), ISBN 9783030339159, EUR 96.29

During the past decade, claims pertaining to measures of the financial sector have started to multiply before international investment fora. Whereas there were 33 cases during the period 1996-2011, the number increased to 51 between 2012 and 2019.2 This sector encompasses many types of disputes. The present article focuses on those arising out of regulatory measures of the European Union (EU).

Reasons are fundamental to the development of the investment treaty arbitration regime. Transparent and public awards, which set out how and why decisions are made, have provided a basis for the rapid development of international investment law. Reasoning of certain awards, notably those stemming from the Argentine financial crisis, has provided the basis for significant debate relating to consistency

This lecture surveys the criticisms directed at international investment agreements (IIAs) and their reliance on investor-State dispute settlement (ISDS), as well as the leading reform venues that have been addressing such criticisms: UNCTAD, ICSID, and UNCITRAL. It argues that despite these ambitious efforts, the international investment regime’s reliance on investor-State arbitration will not be

The dispute in Rand and Sembi v Serbia concerned land located near the Serbian capital’s airport, which was owned by foreign investors. The investors—Rand Investments Limited, William Archibald Rand, Kathleen Elizabeth Rand, Allison Ruth Rand, Robert Harry Leander Rand (the Rands) and Sembi Investment Limited (Sembi)—claimed that their rights as investors were compromised by a Serbian privatisation

The award of 7 December 2018 in Manchester Securities Corporation v Poland (Award), a case under the United States–Poland bilateral investment treaty (BIT),4 is notable for its finding of denial of justice against a Member State of the European Union. The Tribunal’s analysis of the issue is distinctive, drawing on factors more typically seen in specific claims of breach of the fair and equitable treatment

On 19 November 2019, the unchallenged arbitrators of the Canepa v Spain Tribunal, acting as the deciding authority under Article 58 of the ICSID Convention,4 rejected Spain’s proposal to disqualify the Claimants-appointed arbitrator in the case.5 One of the grounds for disqualification advanced by Spain pertained to the relationship between the Claimants’ appointee and a third-party funder.6 To the

The United Arab Emirates (UAE) has assumed a leading role in attracting foreign investments in the region through the implementation of the Foreign Direct Investment Law of 2018 (FDI Law). The goal of the FDI Law is to create a pathway and framework that would enable 100 percent foreign ownership of UAE limited liability companies beyond the allowed 49 percent cap in mainland UAE. The efforts have

KajHobér, The Energy Charter Treaty: A Commentary (OUP2020), ISBN 9780199660995, US $330.00

Is there an exception to the principle of full reparation in international investment arbitration for cases in which full compensation is crippling for the responsible State or its peoples? The routine presentation and consideration of billion-dollar-plus investment arbitration claims in the first half of 2021 suggests that this subject has not been invented in order to enable it to be written about

Until recently, requests for security for costs (SfC) were relatively rare. Earlier cases that dealt with SfC applications imposed a high threshold that may have had a deterrent effect on States. Although tribunals have remained reluctant to grant such requests, there has been a gradual rise in the number of SfC applications made by States. This emerging trend may be partially due to the growing use

In a Decision dated 6 December 2018 (Decision on Annulment), the ad hoc Committee (Committee) in OI European Group v Venezuela rejected Venezuela’s application for annulment in its entirety. Venezuela applied to annul the award dated 10 March 20153 (Award) on four of the five grounds available for annulment under Article 52(1) of the Convention on the Settlement of Investment Disputes between States

Until recently, requests for security for costs (SfC) were relatively rare. Earlier cases that dealt with SfC applications imposed a high threshold that may have had a deterrent effect on States. Although tribunals have remained reluctant to grant such requests, there has been a gradual rise in the number of SfC applications made by States. This emerging trend may be partially due to the growing use

In a Decision dated 6 December 2018 (Decision on Annulment), the ad hoc Committee (Committee) in OI European Group v Venezuela rejected Venezuela’s application for annulment in its entirety. Venezuela applied to annul the award dated 10 March 20153 (Award) on four of the five grounds available for annulment under Article 52(1) of the Convention on the Settlement of Investment Disputes between States

This article examines the ongoing dispute over the presidency of Venezuela as a case study on the state of international law relating to the recognition of governments. Since the beginning of the presidential deadlock in Venezuela in 2019, ICSID tribunals and ad hoc Committees, as well as the courts of England and Wales, have found themselves embroiled in the dispute over the Venezuelan presidency

Investor-State tribunals are equipped with lis pendens, res judicata, abuse of process, and adverse cost orders to ensure that parties are not twice vexed for the same issue or to minimize the harm from multiplying action. When abuse of process is applied to a parallel or successive arbitration, it is considered whether the later action could have been joined, consolidated or coordinated with an earlier

The European Court of Justice (ECJ) made a ground-breaking shift away from the current system of investor–State dispute settlement (ISDS) by rendering its judgment in the matter of Achmea v Slovak Republic. However, since March 2018, a large and ever-growing number of investment tribunals have found that the Achmea judgment does not deprive them of arbitral jurisdiction. Against this background, the

AbstractInvestor-State tribunals are equipped with lis pendens, res judicata, abuse of process, and adverse cost orders to ensure that parties are not twice vexed for the same issue or to minimize the harm from multiplying action. When abuse of process is applied to a parallel or successive arbitration, it is considered whether the later action could have been joined, consolidated or coordinated with

AbstractThe European Court of Justice (ECJ) made a ground-breaking shift away from the current system of investor–State dispute settlement (ISDS) by rendering its judgment in the matter of Achmea v Slovak Republic. However, since March 2018, a large and ever-growing number of investment tribunals have found that the Achmea judgment does not deprive them of arbitral jurisdiction. Against this background

This article addresses the complex topic of counterclaims in investment arbitration by critically assessing and commenting Article 6 of the 2019 The Hague Resolution of the Institut de Droit International (IDI) on the ‘Equality of Parties before International Investment Tribunals’ paragraph by paragraph.

AbstractThis article addresses the complex topic of counterclaims in investment arbitration by critically assessing and commenting Article 6 of the 2019 The Hague Resolution of the Institut de Droit International (IDI) on the ‘Equality of Parties before International Investment Tribunals’ paragraph by paragraph.

In the 2000s, several European states sought to increase foreign investment in their renewable energy sectors. Those governments later wound back those financial incentives. This resulted in dozens of investment disputes. One of the key issues in those disputes was whether the decision to amend or withdraw financial incentives breached investors' legitimate expectations under the fair and equitable

AbstractIn the 2000s, several European states sought to increase foreign investment in their renewable energy sectors. Those governments later wound back those financial incentives. This resulted in dozens of investment disputes. One of the key issues in those disputes was whether the decision to amend or withdraw financial incentives breached investors' legitimate expectations under the fair and equitable

de StefanoCarlo, Attribution in International Law and Arbitration (Oxford University Press2020), ISBN 9780198844648

BrunoGuandalini, Economic Analysis of the Arbitrator’s Function (International Arbitration Law Library, vol55, Kluwer Law International BV 2020), ISBN 9789403522654, £167.00

de StefanoCarlo, Attribution in International Law and Arbitration (Oxford University Press2020), ISBN 9780198844648

AbstractIn its 2018 Achmea ruling, the European Court of Justice (ECJ) found intra-European Union (EU) investment arbitration incompatible with EU law, and in its 2019 opinion on the proposed Canada–EU Trade Agreement (CETA), the ECJ has set out requirements for the recognition by the EU of investor–State arbitration at large. On the other hand, in the last few years a great many tribunals (under both

GuandaliniBruno, Economic Analysis of the Arbitrator’s Function (International Arbitration Law Library, vol55, Kluwer Law International 2020), ISBN 9789403522654, £167.00

AbstractIn its 2018 Achmea ruling, the European Court of Justice (ECJ) found intra-European Union (EU) investment arbitration incompatible with EU law, and in its 2019 opinion on the proposed Canada–EU Trade Agreement (CETA), the ECJ has set out requirements for the recognition by the EU of investor–State arbitration at large. On the other hand, in the last few years a great many tribunals (under both

AbstractOne of the fundamental objectives of international investment agreements (IIAs) is to protect the rights and interests of foreign investors in the territory of a contracting State. Why, then, have tribunals often exercised jurisdiction ratione personae over the claims of dual nationals against their own State? The answer lies in the silence of IIAs on the matter of dual nationals. Such agreements

Amicus curiae applications have become increasingly common in investment arbitration over the past two decades.33 These applications raise a number of important theoretical and practical issues, many of which are relatively unexplored. These issues include the authority of tribunals to allow Amicus participation in arbitral proceedings, the circumstances in which such participation is permitted and

Damages have been described as ‘the poor cousin of liability’.3 Yet damages valuation plays an essential, albeit often controversial, role in investor–State arbitration. Quantum questions require the participants—parties, counsel, experts and especially arbitrators—to think creatively and critically about the applicable framework underlying damages valuation. Consistency and rigor in the tribunal’s

The valuation date of an expropriated property is considered a major element in the calculation of compensation. Some international investment tribunals, relying on the standard set by the Permanent Court of International Justice (PCIJ) in the Chorzów Factory case, have adopted a dual standard for determining the valuation date and have switched between the date of taking and the date of award to secure

The concept of “admissibility of claims” in investment treaty arbitration is far from settled. Its very existence (and if so, its scope) has given rise to voluminous divergence of views amongst tribunals and scholars. Under the debatable assumption that admissibility is more discretionary than jurisdiction, various requirements, such as the requirement to have recourse to the local courts of the host

Sovereign States have had to take drastic measures to contain the spread of the SARS-CoV-2 virus, including measures severely restricting the operation of businesses in their territory. In addition, and because of, the public health crisis, States will be forced to take a series of measures to stimulate their economies. These measures are likely to affect investments that benefit from international

Through design of international investment agreements, foreign investors may bring international claims against the States in which they invest, challenging domestic executive and regulatory measures, including those related to the environment and sustainable development. In contrast, host States are usually limited to defending claims brought against them. The capacity for a host State to bring an

 When the ICSID system was being set up, the matter of compliance with investment awards rendered against States was considered "academic". ICSID’s architects believed that as long as States would remain under an international obligation to comply with awards they would generally do so. Writing in the 2000s and early 2010s, commentators observed that States have generally complied with adverse investment

MarisiFlavia, Environmental Interests in Investment Arbitration: Challenges and Directions (Kluwer Law International2020), ISBN 978-94-035-1723-0 €190.00

Jure Zrilič (ed), The Protection of Foreign Investment in Times of Armed Conflict (OUP 2019) ISBN 9780198830375, US $115

GenestAlexandre, Performance Requirement Prohibitions in International Investment Law (Brill Nijhoff2019), ISBN 978-90-04-39209-0, US $159.00

AbstractThe article falls within the broad areas of investment and financial law and, in particular, it focuses on various challenges that emerge from allegations of economic crime in investor–State arbitration. In particular, what is examined is how the adjudicative power and authority of investor–State tribunals is affected by alleged investors’ economic crimes. The two examples of economic crimes

AbstractPassive investments are a phenomenon in investment treaty arbitration. Arbitral jurisprudence is divided over the eligibility of investments represented by claimants who played little or no part in their establishment or nurturing for treaty protection. This note attributes the emergence of passive investments as a category of protected investments to a jurisdictional loophole present in the

FouretJulien, GerbayRémy, AlvarezGloria M (eds), The ICSID Convention, Regulations and Rules: A Practical Commentary (Edward Elgar Publishing2019), ISBN 9781786435231, e-ISBN 9781786435248, (print copy available from the Edward Elgar Publishing website, $525.00; e-book version available from various e-book vendors, $310)

Isabelle Bosse-Platière and Cécile Rapoport (eds) The Conclusion and Implementation of EU Free Trade Agreements: Constitutional Challenges (Edward Elgar Publishing2019) ISBN 978-1-78897-479-0, US $150

The reform of the investor–State dispute settlement (ISDS) mechanism has sparked intense debate among commentators. The proliferation of ISDS cases means that the mechanism can exert increasing influence on international and domestic laws, which creates higher expectations (and thus more critiques) of the independence, fairness, coherence and transparency of arbitral decision making.22 For States,

The reform of the investor–State dispute settlement (ISDS) mechanism has sparked intense debate among commentators. The proliferation of ISDS cases means that the mechanism can exert increasing influence on international and domestic laws, which creates higher expectations (and thus more critiques) of the independence, fairness, coherence and transparency of arbitral decision making.22 For States,

AbstarctRecent developments in investment arbitration and international investment law, in general, are prompting the review of the role of amici curiae in investment arbitration proceedings. The latest initiatives addressing the challenges to the investor-State dispute settlement (‘ISDS’) system, including under the auspices of the UNCITRAL Working Group III, alluded to the participation of the amici

AbstarctRecent developments in investment arbitration and international investment law, in general, are prompting the review of the role of amici curiae in investment arbitration proceedings. The latest initiatives addressing the challenges to the investor-State dispute settlement (‘ISDS’) system, including under the auspices of the UNCITRAL Working Group III, alluded to the participation of the amici

AbstractTo the surprise of many, questions have recently arisen over the scope of inquiry, if any, that a national court may, consistent with Article 54 of the ICSID Convention, make in connection with the enforcement of an ICSID award. It has long been assumed in many, if not most, quarters that a national court is privileged to condition enforcement of an ICSID Convention award on a single simple