Investor-State Dispute Settlement under Investment Treaties and Free Trade Agreements: ad hoc Arbitration or Investment Court System?

01/02/17 17:55 Filed in: International Arbitration
ad hoc investor-State arbitration with a permanent, multilateral investment court.
Investor-State dispute settlement (“ISDS”) has come a long way from its foundations in the mid-Eighteenth Century, when the idea of State responsibility for injury to aliens and their property began to emerge. This once esoteric area of international practice is now undergoing a period of re-evaluation, for the first time under intense public scrutiny. A particular focus is on the form that ISDS should take in future trade and investment treaties, with the European Commission and Canadian Government advocating the replacement of the prevailing system of 
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Hong Kong, the Trans-Pacific Partnership and Foreign Investment Protection

01/08/16 18:39 Filed in: International Arbitration
The Trans-Pacific Partnership Agreement (“TPP”), which was signed in November 2015 by the United States, Canada, Mexico, Peru, Chile, Japan, Brunei, Malaysia, Singapore, Australia, New Zealand and Vietnam, has increased public awareness of the technocratic and often obscure world of international trade and investment deals.
But whereas the TPP’s political and strategic implications in Asia and the Pacific are being widely debated in the newspapers, less consideration has been given to how the TPP would (if and when it comes into force) become part of a growing network of investment protection treaties in the region. Read More…

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Landmark Sovereign Debt Restructuring Award

30/04/15 18:00 Filed in: Awards
On 9 April 2015, an International Centre for Settlement of Investment Disputes (“ICSID”) arbitral tribunal dismissed a case arising out of Greece’s sovereign debt exchange for lack of jurisdiction. The landmark decision is the first time that an ICSID tribunal has declined jurisdiction over interests in sovereign bonds.
The award was made in Poštová banka, a.s. and ISTROKAPITAL SE v. Hellenic Republic, a bilateral investment treaty (“BIT”) arbitration initiated in 2013 by a Slovak bank and its former Cypriot shareholder under the Slovak Republic-Hellenic Republic BIT (“Slovakia-Greece BIT”) and the Cyprus-Hellenic Republic BIT. The claimants had sought compensation for illegal expropriation, failure to accord fair and equitable treatment, and violation of umbrella clauses in respect of the bank’s interests in Greek government bonds (“GGBs”) that were exchanged in 2012.
Beyond the headline, the decision is an important reminder that not every kind of asset qualifies as a protected investment under a potentially applicable investment treaty or the ICSID Convention, and of the basic yet fundamental rule of treaty interpretation that a BIT’s terms must be interpreted in good faith within their context and in light of the treaty’s object and purpose. More generally, the conclusion by a majority of the Tribunal that the bank’s interests in GGBs did not meet the objective requirements of contribution and risk for the purposes of Article 25 of the ICSID Convention may have broader implications for treaty-based claims asserted by other holders of interests in restructured sovereign debt. Read More…

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Enforcing International Arbitration Agreements in Federal Courts: Rethinking the Court's Remedial Powers

10/05/06 15:29 Filed in: International Arbitration
The area of remedies in private international law is largely unexplored, but provide the very means by which the courts can advance private international law aims such as controlling international litigation and enforcing forum selection. The contractual nature of arbitration agreements and the policy in favor of arbitration make this a good starting point from which a wider remedial framework can be developed.  In practice, the U.S. federal courts invariably enforce arbitration agreements with the statutory remedies in the Federal Arbitration Act. Yet, there is no reason why this should be. Where the statutory remedy is deficient or inappropriate, the courts may appeal to their wider inherent remedial powers to fashion suitable relief. The domestic law of remedies suggests that the courts may use specific and (antisuit) injunctive relief to enforce the parties' right to the arbitral forum, or to award ordinary contractual damages to vindicate what is a straightforward breach of contract. Private international law remedies such as stays of proceedings and nonrecognition of judgments obtained in breach of arbitration agreements are other remedial alternatives that can be used to enforce such agreements. All the same, development of each of these remedies must be done within the context of an overarching remedial scheme - akin to that which exists in domestic law. The domestic law of remedies offers an interlocking set of remedial responses to vindicate wrongs. To effectively control international litigation and improper attempts at forum shopping, the courts must endeavor to develop a similar remedial framework in the private international law context, in order that they may be able to render the most appropriate remedial relief to enforce agreements to arbitrate and advance the policy in favor of arbitration.
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Constructing a Doctrine of Economic Duress

05/04/05 15:34 Filed in: Contract
Construction cases have played a pivotal role developing the doctrine of economic duress. In the seminal case of Williams v. Roffrey Brothers, the Court of Appeal, by taking an expansive view of the doctrine of consideration, established economic duress as the device for policing renegotiation of contracts. Recently, the cases of DSND Subsea v. Petroleum Geo-Services and Carillion Construction Limited v. Felix (U.K.) Limited in the Technology and Construction Court have resulted in further development. 

This article argues that the doctrine emerging from the cases may be difficult to reconcile with established contractual principles. A more predictable approach, drawing on established legal principles, is then proposed. Read More…

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