International law: arbitration Books

Book SynopsisVery Short Introductions: Brilliant, Sharp, InspiringArbitration is a legal dispute resolution mechanism, alternative to courts. It provides binding decisions, enforceable around the world. It is where parties take their disputes when they have agreed that courts, for one reason or another, do not suit them - which happens more often than one might think. Some of the most politically sensitive disputes on the largest scale go to arbitration. Countries which need to settle their boundaries in areas of the oceans rich in oil, gas and other resources sometimes arbitrate, and much of the war in Sudan was eventually tied up with an arbitration. Investors who have staked billions of dollars in unstable developing countries rely on arbitration clauses to protect their investments. But also much smaller, everyday cases are routinely dealt with by arbitration - millions of consumers, whether they know it or not, enter into arbitration contracts when they conclude routine transactions. Even athletes get involved in arbitration cases of great notoriety, for instance when these relate to doping offences during the Olympic Games.This Very Short Introduction explains what arbitration is, how it works, what parties who have agreed to go to arbitration should expect, the relationship between arbitration and the law, and the politics of arbitration. It also considers where the global system of arbitration is headed. ABOUT THE SERIES: The Very Short Introductions series from Oxford University Press contains hundreds of titles in almost every subject area. These pocket-sized books are the perfect way to get ahead in a new subject quickly. Our expert authors combine facts, analysis, perspective, new ideas, and enthusiasm to make interesting and challenging topics highly readable.Table of ContentsPrologue 1: Where does arbitration come from? 2: How does arbitration work? 3: From financial crises to doping disputes: "I will see you in... arbitration!" 4: Arbitration and the law 5: The geopolitics of arbitration against governments 6: Where is arbitration going? References Further Reading Index

Read more less

Book SynopsisThe international energy industry frequently gives rise to complex, high-value disputes. As economic and commercial circumstances change, joint venture partners may disagree over operations, sellers and buyers may manoeuvre to amend pricing terms and states may seek to improve their take from investment projects. Any of these outcomes can have significant consequences for the long-term prospects of companies operating in the sector. These are just some of the issues covered by this title, which provides a practical, user-friendly overview of the essentials of international arbitration in the energy industry. Leading practitioners from international law firms and global companies consider, among other things, the effective drafting of arbitration clauses, how to keep international arbitration affordable, gas price arbitrations, EPC and construction arbitrations, investment treaty disputes under the Energy Charter Treaty, third party funding in international arbitration and enforcement of arbitral awards. Edited by Ronnie King, Tokyo Managing Partner and international arbitration expert at international law firm Ashurst LLP, this title will be of practical value for all lawyers advising in the energy industry, and for others who have an interest in the important issues discussed.Table of ContentsIntroduction Ronnie King Ashurst LLP Effective arbitration clauses James Macdonald Dyfan Owen Ashurst LLP Time and cost efficiency Peter Ashford Fox Williams Alternative dispute resolution Luke Carbon Georgia Quick Ashurst LLP Practical tips from an in-house lawyer’s perspective Rachael Bewsey Ophir Energy plc The 2017 AIPN Model Dispute Resolution Agreement M Imad Khan Jennifer M Smith Hogan Lovells US LLP Oil and gas arbitrations in the Middle East and North Africa Tim Martin Northumberland Chambers Gas pricing disputes Ghislaine Lawless Matthew Saunders Ashurst LLP EPC and construction disputes Patrese McVeigh Rob Palmer Ashurst LLP Joint venture disputes Nicholas Lingard Emily Stennett Freshfields Bruckhaus Deringer LNG plant disputes Ben Giaretta Mischon de Reya LLP The Energy Charter Treaty Thomas K Sprange Ben J Williams King & Spalding International LLP The role of expert evidence in energy arbitrations Adrian Howick KPMG LLP Arbitrating competition law claims in the energy sector Neil Cuninghame Max Strasberg Ashurst LLP Dispute funding and the energy sector Oliver Gayner Tom Glasgow Nathan Landis IMF Bentham Ltd Enforcement of awards Rajinder Bassi Jon Newman Kirkland & Ellis

Read more less

Book SynopsisThis book covers the origins and development of the International Centre for Settlement of Investment Disputes (ICSID) and its Convention, from 1955 to 2015. It includes accounts of the formulation of the Convention, the elaboration of ICSID's Regulations and Rules and analysis of the cases submitted since the entry into force of the Convention.Trade ReviewIn sum, this is an outstanding work that shows how important the convention has been for the development of a system of international treaty arbitration ... This book is a must-have for all who work in this field. * . Nicos Lavranos, European Investment Law and Arbitration Review *Parra's account of ICSID is authoritative and comprehensive ... his exemplary thoroughness makes this an invaluable resource that will be used for a long time to come. * Taylor St. John, Journal of World Investment & Trade *This book is undoubtedly a useful source for anyone who deals with ICSID arbitration, whether in practice or for research [...] I take this opportunity to congratulate the author for a unique contribution to an ever-growing body of investment arbitration literature and recommend his work - without hesitation - for its impeccable scholarship. * Gordon Blanke, The CIArb Journal (2018) *Who better to write (and now update) the history of the World Banks investor-state dispute mechanism and institution (ICSID) than the man described as its institutional memory, who served as its deputy secretary-general from 1999-2005? ... This history of ICSID encapsulates its place in the pantheon of dispute resolution forums, in a positive and comprehensive way, and is a very useful resource for those seeking to put such disputes in their institutional context. * Philippa Charles, Stewarts Law LLP (Law Gazette) *Antonio Parra has harnessed more than a decade's worth of experience in this user friendly but comprehensive history of the Centre ... All in all, the book, through its accessible presentation of the establishment and evolution of the Centre throughout the decades, is an essential introduction to anyone interested in investor-state dispute settlement. * Bernard Hanotiau & Iuliana Iancu, Hanotiau & van den Berg (Journal of International Arbitration) *Table of Contents1: Introduction 2: Origins of the Convention 3: Broches's "Working Paper" 4: The Preliminary Draft of the Convention 5: Finalizing the Text of the Convention 6: Establishment and Launch of the Centre 7: ICSID's First Two Decades 8: Aspects of the Early Cases 9: ICSID from 1989 to 1999 10: ICSID from 2000 to 2010 11: "The Premier International Arbitration Facility in the World" 12: Conclusion

Read more less

Book SynopsisThis is an open access title available under the terms of a CC BY-NC-ND 3.0 International licence. It is free to read at Oxford Scholarship Online and offered as a free PDF download from OUP and selected open access locations. This book examines the law, national and/or international, that arbitral tribunals apply on the merits to settle disputes between foreign investors and host states. In light of the freedom that the disputing parties and the arbitrators have when designating the applicable law, and because of the hybrid nature of legal relationship between investors and states, there is significant interplay between the national and the international legal order in investor-state arbitration. The book contains a comprehensive analysis of the relevant jurisprudence, legal instruments, and scholarship surrounding arbitral practice with respect to the application of national law and international law. It investigates the awards in which tribunals referred to consistency between the Trade ReviewThis is an excellent monograph that makes important inroads to investment arbitration and will no doubt make a wonderful companion to anyone with a serious interest in this field. * Ilias Bantekas, Transnational Dispute Management *The author's critical analysis of the multifarious shades and lights of such a complex subject has made it a worthwhile reading for gaining some insight into the subject. International lawyers, international investment lawyers, international arbitration law experts, international arbitrators and academics in the field will find the study of great value for some time to come. The study is a most up-to-date one in the field as well. * A F M Maniruzzaman, Manchester Journal of International Economic Law *Table of Contents1. General Introduction ; 2. Territorialized and Internationalized Arbitration Tribunals ; 3. Choice-Of-Law Rules ; 4. The Scope of the Arbitration Agreement: Claims and Counterclaims of a National and/or International Nature ; 5. The Primary Applicability of National Law and the Role of International Law ; 6. The Primary Applicability of International Law and the Role of National Law ; 7. Concurrent Application of, and Reference to, National and International Law in Case of Consistency ; 8. Concluding Observations

Read more less

Book SynopsisThis Special Report is relevant to those interested in learning about the scope for disputes in the renewables sector, how they can be avoided, and how arbitration can best be deployed to prevent delay, resolve disputes which might otherwise jeopardise project completion and operation and help push the energy transition forward.

Read more less

Book SynopsisWhich dispute settlement mechanisms are available in the area of space communication? Their choice is clearly determined by the legal character of those who are parties in the dispute – States, international intergovernmental organisations, private entities or even individuals. In this study the analysis of various dispute settlement mechanisms demonstrates that not all existing mechanisms are equally capable of serving this purpose. It appears that the parties to a dispute often prefer to search for a consensus and an arbitration procedure prior to taking part in international adjudication. The cases where formalised international courts are involved in this area have been relatively rare. Space communication disputes may often be similar to investment disputes; the decisive factors of this similarity are the high costs of investment, its international character, the necessity to maintain working relationships with the opposing party of the dispute after the conclusion of the dispute, the difficult technical background to the cases, little trust in court procedures, low indemnification and the fear of non-implementation of court decisions. As a consequence, it can be expected that mediation, negotiation and arbitration, but also alternative dispute settlement mechanisms will remain the main mechanisms of dispute settlement in the area of space communication in the near future. This title is included in Bloomsbury Professional's International Arbitration online service.Trade Review[W]e would certainly recommend this work to those involved in dispute settlement and telecommunications law. The book contains many useful insights for practitioners, and is food for thought for academics who would like to further elaborate on the topic. -- Piergiuseppe Pusceddu * Transnational Dispute Management *This book consists of an excellent range of papers delivered at the 2013 Workshop on the topic and is a useful addition to any collection on dispute resolution or on space law. -- Sa’id Mosteshar * Computer and Telecommunications Law Review *Table of ContentsIntroduction: Dispute Settlement in the Area of Space Communication Mahulena Hofmann Dispute Settlement in Satellite Communication and the ITU ITU and its Dispute settlement Mechanism Srinivasan Venkatasubramanian The Role of Consensus in the ITU Francis Lyall Dispute Resolution before the ITU: The Operator’s Experience Gerry Oberst Orbits and Frequencies: The Legal Context Tanja Masson-Zwaan From Negotiations to Dispute Settlement: The Role of the World Trade Organization (WTO) in relation to Satellite Communications Peter Malanczuk About the New PCA Rules and their Application to Satellite Communication Disputes Frans G. von der Dunk Dispute Settlement in Space: The Perspective of the European Space Agency Ioanna Thoma

Read more less

Book SynopsisThis book provides an ideal introduction to the fundamentals of international investment law and dispute settlement for students or practitioners. It combines a systematic analytical study of the texts and principles underlying investment law with a jurisprudential analysis of the case law arising in international tribunals.Trade ReviewReview from previous edition The expansion of bilateral investment treaties (BITs) and regional agreements dealing with investment, and the increasing number of awards applying them in disputes between foreign investors and host States makes this book quite timely. Although there have been several efforts to present the subject-matter in a single volume, this is the first successful attempt to do so in clear and authoritative terms, maintaining an appropriate balance between conciseness and completeness...this work not only deals with "principles" as the title indicates, but systematically and meticulously covers all the issues that have presented themselves in this subsector of international law. * Giorgio Sacerdoti, Italian Yearbook of International Law, Vol XVIII *This book is an exceptional guide for practitioners and students alike and an essential reference tool for investment arbitration cases. * Crina Baltag - Queen Mary, University of London *Clearly written and take[s] a comprehensive approach to the major issues and principles of international investment law...a useful guide not only for novices in the field of investment law, but also for experienced practitioners since [it] represent[s] a powerful reference tool...[The book is] equally useful for counsel representing investors and states, arbitrators and negotiators of investment treaties, as [it] contain[s] excellent information and references, as well as pertinent commentaries and stimulating ideas. * Crina Baltag, British Yearbook of International Law *Table of ContentsI. BACKGROUND AND INTRODUCTION; II. INVESTORS AND INVESTMENTS COVERED BY INTERNATIONAL AGREEMENTS; III. INVESTMENT CONTRACTS; IV. ADMISSION AND ESTABLISHMENT; V. PRINCIPLES OF PROTECTION - SUBSTANTIVE STANDARDS; VI. QUESTIONS OF STATE RESPONSIBILITY; VII. POLITICAL RISK INSURANCE; VIII. SETTLING INVESTMENT DISPUTES; ANNEXES

Read more less

Book SynopsisThis book addresses how the regulation of international commercial arbitrators takes place. International commercial arbitrators are a unique category of service providers because they are not organised as other professionals such as accountants, lawyers and doctors. The book provides an overview of how and why the regulation of international commercial arbitrators diverged from that of other professions. It also argues that, despite these differences, there is an effective regulatory environment overseeing the behaviour of international commercial arbitrators. The book unpicks the different elements that contribute to the creation and enforcement of professional norms in this field. It explains how the specific characteristics of the arbitral market create strong incentives for ethical norms to be created, even in the absence of the institutions that usually address these issues in other fields. It also describes how market and social forces drive arbitrators to comply with these norms in most circumstances. Finally, the book addresses the ways in which this regulatory system also explains some of the perceived weaknesses of arbitration, namely the rising costs of proceedings and the perceived unfairness of appointments.

Read more less

Book SynopsisIn Formalisation and Flexibilisation in Dispute Resolution, scholars from four continents examine both historical and recent developments that cast doubt on the validity of the widespread assumption that alternative dispute resolution (ADR) can be distinguished from state-based proceedings by invoking the contrasting labels of informal justice versus formal law.Table of ContentsINTRODUCTION THE CHANGING FACE OF DISPUTE RESOLUTION JOACHIM ZEKOLL, MORITZ BÄLZ & IWO AMELUNG PART I: The Theme in General CHAPTER 1: FORMALISATION OF ALTERNATIVE DISPUTE RESOLUTION PROCESSES: SOME SOCIO-LEGAL THOUGHTS MICHAEL J.E. PALMER CHAPTER 2: THE PRIVATE IN PUBLIC, THE PUBLIC IN PRIVATE: THE BLURRING BOUNDARY BETWEEN PUBLIC AND PRIVATE DISPUTE RESOLUTION DEBORAH R. HENSLER CHAPTER 3: CHINA’S DISPUTE-RESOLUTION MECHANISMS AND INNOVATION IN THE TRANSFORMATION ERA YUJUN FENG AND XIAOLONG PENG CHAPTER 4: MEDIATION AND THE RULE OF LAW: THE CHINESE LANDSCAPE HUALING FU CHAPTER 5: NO ALTERNATIVE: RESOLVING DISPUTES JAPANESE STYLE ERIC A. FELDMAN PART II: Formalisation and Flexibilisation – Historical Perspectives CHAPTER 6: JUDICIAL DISPUTE RESOLUTION AND ITS MANY ALTERNATIVES: THE NORDIC EXPERIENCE PIA LETTO-VANAMO CHAPTER 7: “EXPLAINING” AND “MEDIATING” IS MORE IMPORTANT THAN PENALTIES: A COMPREHENSIVE EXPLANATION OF THE RESOLUTION OF MINOR CASES AT COUNTY LEVEL IN LATE-IMPERIAL CHINA (1368-1911) JIANG YU PART III: Specific Applications and Normative Considerations CHAPTER 8: THE DIVERSIFICATION AND FORMALISATION OF ADR IN JAPAN: THE EFFECT OF ENACTING THE ACT ON THE PROMOTION OF THE USE OF ALTERNATIVE DISPUTE RESOLUTION KOTA FUKUI CHAPTER 9: IN/FORMALISATION AND GLOCALISATION OF INTERNATIONAL COMMERCIAL ARBITRATION AND INVESTMENT TREATY ARBITRATION IN ASIA LUKE NOTTAGE CHAPTER 10: INFORMALISM AND FORMALISM IN THE HISTORY OF ADR IN THE UNITED STATES AND AN EXPLORATION OF THE SOURCES, CHARACTER, AND IMPLICATIONS OF FORMALISM IN A COURT-SPONSORED ADR PROGRAMME WAYNE BRAZIL CHAPTER 11: UNLOCKING JUSTICE AND MARKETS: THE PROMISE OF CONSUMER ADR CHRISTOPHER HODGES CHAPTER 12: PRIVATE LAW ENFORCEMENT AND ADR: AN ARRANGED MARRIAGE GERHARD WAGNER INDEX

Read more less

Book SynopsisEdited by Shaheeza Lalani and Rodrigo Polanco Lazo, The Role of the State in Investor-State Arbitration is a collection of edited contributions by lawyers, arbitrators and political scientists on the development of the concept of the “State” in a field that currently presents an increasing number of controversial disputes: Investor-State Arbitration.Table of ContentsFOREWORD Shaheeza Lalani THE ROLE OF THE STATE IN INVESTOR-STATE ARBITRATION: INTRODUCTORY REMARKS Michael E. Schneider PART I. STATE POWERS AND INVESTOR-STATE DISPUTE SETTLEMENT Krista Nadakavukaren Schefer CHAPTER 1: STATES AND FOREIGN INVESTMENT: A LAW OF THE TREATIES PERSPECTIVE Tarcisio Gazzini CHAPTER 2: THE REGULATORY STATE AND THE DUTY OF CONSISTENCY Danielle Morris CHAPTER 3: THE TRANSPLANTATION OF LEGITIMATE EXPECTATIONS IN INVESTMENT TREATY ARBITRATION: A CRITIQUE Teerawat Wongkaew CHAPTER 4: HOST STATES AS CLAIMANTS: CORRUPTION ALLEGATIONS Dai Tamada PART II. STATES AND THE INVESTOR-STATE ARBITRATION REGIME Stephen Gelb CHAPTER 5: THE CONCEPT OF THE STATE IN INVESTOR-STATE ARBITRATION: A SOCIAL SCIENCE PERSPECTIVE Todd Tucker CHAPTER 6: THE IMPACT OF INVESTMENT TREATY LAW ON HOST STATE BEHAVIOR: SOME DOCTRINAL, EMPIRICAL AND INTERDISCIPLINARY INSIGHTS Mavluda Sattorova CHAPTER 7: DOMESTIC DEMANDS AND INTERNATIONAL AGREEMENTS: WHAT CAUSES INVESTOR STATE DISPUTES? Zoe Williams CHAPTER 8: EXIT, VOICE, AND LOYALTY IN INVESTMENT TREATY ARBITRATION: A SUMMARY Anna Katselas CHAPTER 9: INTER-GOVERNMENTAL CONSIDERATION OF INVESTOR-STATE DISPUTE SETTLEMENT AT THE OECD-HOSTED FREEDOM OF INVESTMENT (FOI) ROUNDTABLE David Gaukrodger PART III. THE CHANGING ROLE OF THE STATE IN INVESTOR-STATE DISPUTES Rodrigo Polanco Lazo CHAPTER 10: TOWARDS A GREATER ROLE FOR STATE-TO-STATE ARBITRATION IN THE ARCHITECTURE OF INVESTMENT TREATIES? Michele Potestà CHAPTER 11: THE ROLE OF THE STATE AFTER AN AWARD IS RENDERED IN INVESTOR-STATE ARBITRATION Tomonori Mizushima CHAPTER 12: THE RETURN OF THE HOME STATE AND THE RISE OF ‘EMBEDDED’ INVESTOR-STATE ARBITRATION Wolfgang Alschner CHAPTER 13: ILLEGAL INVESTMENTS AND ACTIONS ATTRIBUTABLE TO A STATE UNDER INTERNATIONAL LAW 226 Sergey Usoskin PART IV. ATTRIBUTION OF CONDUCT OF NON-STATE ORGAN ENTITIES: AN INTRODUCTION Georgios Petrochilos CHAPTER 14: THE EUROPEAN UNION INVESTMENT ARBITRATION REGIME AND LOCAL GOVERNMENTS: THE NEED FOR A SYNCHRONIZATION OF EFFORTS Cornel Marian CHAPTER 15: STATE-OWNED ENTERPRISES IN THE CURRENT REGIME OF INVESTOR-STATE ARBITRATION Ji Li CHAPTER 16: THE MANY FACES OF STATES IN INTERNATIONAL INVESTMENT LAW: SUPRANATIONAL ORGANIZATIONS, UNRECOGNIZED STATES AND SUB-STATE ENTITIES Chien-Huei Wu THE CHANGING ROLE OF THE HOME AND THE HOST STATE IN INVESTOR-STATE ARBITRATION: SOME CONCLUSIONS Rodrigo Polanco Lazo

Read more less

Book SynopsisWith the entrance of the European Union into the field of International Investment Law and Arbitration, a new specialist field of law, namely ‘European Investment Law and Arbitration’ is in the making. This new field of law draws on EU Law, Public International Law, International Investment Law, International Arbitration Law and Practice and International Economic Law, while other fields of law such as Energy Law are also relevant. This Review is the first law yearbook that is specifically dedicated to the field of ‘European Investment Law and Arbitration’. Published under the auspices of Queen Mary University of London and EFILA.Table of ContentsEditorial 1 The Delimitation of Contractual Rights and Property in International Investment Law Inga Martinkute; 2 The EU Dispute Settlement: Towards Legal Certainty in an Uneven International Investment System? Maria Laura Marceddu; 3 The Unresolved Conundrum of Contract-Based and Treaty-Based Claims – An extra element of contention: privity of contract and forum selection clauses in investment contracts Martina Magnarelli; 4 The Aftermath of the Hague District Court Judgment: Are the Yukos Shareholders Now Shut out from Enforcing the ECT Awards through the English Courts? Egishe Dzhazoyan and Benjamin Burnham; 5 Legitimate Expectations and the Interpretation of the 'Legal Stability Obligation' Simon Maynard; 6 Can Amici Curiae Rescue the Fading EU ISDS System? Denis Parchajev and Rimantas Daujotas; 7 The Use of Online Dispute Resolution in the Realm of Investment Arbitration in the European Union Irene Ng and Valeria Benedetti del Rio; 8 The UNCITRAL Transparency Standards in ISDS as a result of multi-lateral negotiation Judith Knieper; EFILA section 9 Escaping from Freedom? The dilemma of an improved ISDS mechanism Sophie Nappert; 10 Lights and shadows of the WTO-inspired International Court System Filippo Fontanelli, Koorosh Ameli, Ilias Bantekas, Horia Ciurtin, Nikos Lavranos, Mauro Rubino-Sammartano and Emma Spiteri Gonzi; EFILA Annual Conference 2016 contributions 11 The Rule of Law and Alternatives to Investment Arbitration John P. Gaffney; 12 The International Minimum Standard of Treatment and Human Rights: A Pedigree in the Rule of Law Barton Legum; 13 Why Investment Arbitration Contributes to the Rule of Law: Without knowing where we came from we cannot know where we are heading to Richard Happ; 14 Transparency and Independence of Arbitrators in Investment Arbitration: Rule of Law Implications Mathias Wolkewitz; Book review 15 Proportionality and Deference in Investor-State Arbitration by Caroline Henckels David Collins.

Read more less

Book SynopsisThe Guide on the Convention on the Recognition and Enforcement of Foreign Arbitral Awards provides a detailed analysis of the judicial interpretation and application of the New York Convention by reference to case law from 45 Contracting States. The Guide, and the newyorkconvention1958.org website which supplements it, will become an essential tool that benefits all those involved in the interpretation and application of the New York Convention.

Read more less

Book SynopsisSituated between Europe and the borders of China, the Eurasian region is seldom studied from an overall legal perspective. The book gives a first-time structured overview of trade-related aspects of international economic law, comparative commercial law, and dispute resolution in this region, focused on the countries in the Southern Caucasus, Central Asia, as well as Russia. It also addresses the Eurasian Economic Union. Law of International Trade in the Region of the Caucasus, Central Asia and Russia approaches international trade law with a combined public international law and comparative private law perspective, taking into account the global and European context.Table of ContentsSection 4 Environmental Issues 12 Trade and Environment in the Region of the Caucasus and Central Asia: The Case of Hazardous Waste   Andreas R. Ziegler Part 2 The Perspective of Private Law 13 Some Notes on the Law of Sales Contracts in the Region of the Caucasus and Central Asia   Alexander Trunk 14 International Sales Law in the Region of the Caucasus and Central Asia – An Overview   Alexander Trunk 15 Uniform Sales Law as a Tool to Facilitate Complex Global Supply Chains in Central Asia   Cyril R. Emery Part 3 Settlement of International Trade Disputes Section 1 Dispute Settlement under Public International Law Mechanisms 16 Russia’s Experience in wto Dispute Settlement   Nicolas Lamp and Larysa Workewych 17 Conflict of Jurisdictions: wto and pta s   Peter-Tobias Stoll and Jia Xu 18 Dispute Settlement Mechanisms in Free Trade Agreements with the European Union   Thomas Jürgensen 19 The Court of the Eurasian Economic Union   Elena Babkina Section 2 Special Issues 20 Environmental Governance as a Subject of Dispute Settlement Mechanisms in Regional Trade Agreements   Karsten Nowrot 21 Parallel Use of Public and Private Law Mechanisms in Resolution of International Trade Disputes   Ilia Rachkov Section 3 Dispute Resolution under Private Law 22 Private Trade Disputes in State Courts in the Region of the Caucasus and Central Asia – Issues of Quality   Alexander Trunk 23 Emerging Trends of Recognition and Enforcement of Foreign Judgments and Arbitral Awards Issued in Economic Disputes in the Russian Federation   Vladislav Starzhenetskiy 24 Some Remarks on International Commercial Arbitration in the Region of the Caucasus and Central Asia   Alexander Trunk 25 Transparency in Settlement of Trade Disputes – Public Interest and Transparency The Work of uncitral and Its Relevance for the Eurasian Region   Timothy J. Lemay 26 The Impacts of Public International Law on the Enforcement of Foreign Arbitral Awards   Dagmar Richter 27 International Commercial Arbitration and Economic Sanctions   Andrey Kotelnikov Conclusions    Alexander Trunk, Marina Trunk-Fedorova, and Azar Aliyev Index

Read more less

Book SynopsisInternational Investment Treaties and Arbitration Across Asia brings together leading academics and practitioners to examine whether and how the Asian region has or may become a significant ‘rule maker’ in contemporary international investment law and dispute resolution. The editors introduce FDI trends and regulations, investment treaties and arbitration across Asia. Authors add country studies for the ten member states of the Association of Southeast Asian Nations as well as an overview of ASEAN treaties, or examine other potential ‘middle powers’ (Korea, Australia and New Zealand collectively) and the emerging ‘big players’ (China, Japan and India). Two early chapters present econometric studies of treaty impact on FDI flows, in aggregate as well as for Thailand, while two concluding chapters offer other normative and forward-looking perspectives.Trade Review"This book provides a comprehensive account of developments in international investment law and practice in the Asian region. It places that account in a larger conceptual framework, partly defined by reference to rule making and rule taking by States. It also places it in the real and conceptually untidy world of domestic and international politics. I congratulate the editors and the contributors on their achievement." ~Hon Robert French AC, Former Chief Justice of Australia "This is an important book for those who need to understand the real picture of international treaty investment in Asia. This book discusses the current dynamics in each different country and also the ways in which investment treaty arbitration is likely to evolve in the near future. Each chapter contains an independent look at the situation in a different country, so it is not a cookie cutter review with the same set of standard questions for the writer of each chapter to answer. There is much to learn from it and will inform any serious discussion of the future of investment treaty arbitration in Asia." ~Michael Hwang SC, Barrister and Arbitrator “Asia is the most dynamic region for investment law and practice, and we finally have a comprehensive volume that covers the region in all its diversity. With a superb set of contributors from inside and outside the region, the volume will be essential reading for any serious scholar or practitioner in the field." ~Tom Ginsburg, Leo Spitz Professor of International Law and Professor of Political Science at the University of Chicago “An invaluable addition to the existing scattered literature on the topic, this work is definitively the entire package deal on investment in the Asia-Pacific, and is nothing short of necessary for academics, practitioners, students, policymakers and even investors.” ~Rahul Donde, Lévy Kaufmann-KohlerTable of ContentsPreface  Robert French, former Chief Justice of the High Court of Australia Acknowledgements List of Illustrations List of Abbreviations Notes on Contributors Part 1: Cross-cutting Themes 1 International Investment Treaties and Arbitration Across Asia: A Bird’s Eye View  Luke Nottage, Julien Chaisse and Sakda Thanitcul 2 The Impact of Investment Treaties and isds Provisions on fdi in Asia and Globally  Shiro Armstrong 3 Do Investment Treaties Work – In the Land of Smiles?  Jason Webb Yackee Part 2: Southeast Asia – Country Studies & ASEAN Initiatives 4 International Investment Arbitration in Thailand: Limiting Contract-based Claims While Maintaining Treaty-based isds  Luke Nottage and Sakda Thanitcul 5 The Termination of Indonesia’s bits: Changing the Bathwater, but Keeping the Baby?  Antony Crockett 6 The European Union’s Free Trade Agreement with Singapore – One Step Forward, 28 Steps Back?  Mahdev Mohan 7 Malaysia and Investor-State Dispute Settlement: Learning from Experience  Sufian Jusoh, Muhammad Faliq Abd Razak and Mohamad Azim Mazlan 8 fdi in the Philippines and the Pitfalls of Economic Nationalism  Anselmo Reyes 9 International Investment Dispute Resolution in Vietnam: Opportunities and Challenges  Nguyen Manh Dzung and Nguyen Thi Thu Trang 10 International Investment Law and Practice in the Kingdom of Cambodia: An Evolving ‘Rule Taker’?  Romesh Weeramantry 11 International Investment Arbitration in Myanmar: Bounded Rationality, but Not as We Know It  Jonathan Bonnitcha 12 International Investment Arbitration in Laos: Large Issues for a Small State  Romesh Weeramantry and Mahdev Mohan 13 International Investment Policy of Small States: The Case of Brunei  Bruno Jetin and Julien Chaisse 14 The Limits of Isomorphism: Global Investment Law and the asean Investment Regime  Sungjoon Cho and Jürgen Kurtz Part 3: Other Potential ‘Middle Powers’ & the Big Players 15 Foreign Investment Regulation and Treaty Practice in New Zealand and Australia: Getting it Together in the Asia-Pacific?  Amokura Kawharu and Luke Nottage 16 Korea’s International Investment Agreements: Policy at the Contours  Joongi Kim 17 A Japanese Perspective on International Investment Agreements: Recent Developments  Tomoko Ishikawa 18 China’s International Investment Policy: Formation, Evolution, and Transformation(s)  Julien Chaisse 19 Investor State Dispute Settlement in the 2016 Indian Model Bilateral Investment Treaty: Does it Go Too Far?  Prabhash Ranjan and Pushkar Anand Part 4: Forward-looking Perspectives 20 An Empirical Case for Extending Standing Panels in Investor-State Arbitration  Leon Trakman 21 Governance and International Investment Treaties for Asia: A Principled Approach to Assessing Regulatory Action  Donald Robertson Index

Read more less

Book SynopsisInternational Investment Law and Arbitration: History, Modern Practice, and Future Prospects explores international law on foreign investment: its creation, functioning and evolution. Particularly, this paper presents a roadmap over the historical context within which investor-State arbitration developed. It provides an overview of the main actors, the protections afforded to foreign investors, the content of modern BITs, and the challenges facing the system today.Table of ContentsContents International Investment Law and Arbitration: History, Modern Practice, and Future Prospects  Ian A. Laird, Borzu Sabahi, and Giovanna E. Gismondi  Abstract  Keywords  I. Introduction  II. Forces that Shape the System of Investment Protection and Promotion  III. Genesis of the Law: Protection of Aliens Abroad, Gunboat Diplomacy, Minimum Standard, and Diplomatic Protection  IV. Protection through Peaceful Means of Settlement of Disputes: Hague Conferences, PCIJ, ICJ  V. Post-World War II: Promotion and Protection of Private Capital Flows  VI. FCN and BIT Programs and Recognition of Foreign Investors’ Right to Directly Submit Claims to International Arbitration without Espousal or Exhaustion of Local Remedies  VII. Content of Modern BITs  VIII. Scaling Back Protections and Backlash  IX. Conclusion  Bibliography

Read more less

Book SynopsisThe fair and equitable treatment (‘FET’) standard is a type of protection found in BITs which has become in the last decades one of the most controversial provisions examined by arbitral tribunals. This book first examines the interaction between the ‘minimum standard of treatment’ (MST) and the FET standard and the question why States started referring to the former in their BITs. It also addresses the question whether the FET should be considered as an autonomous standard of protection under BITs. This book also examines the controversial proposition that the FET standard should now be considered as a rule of customary international law. I will show that while the practice of States to include FET clauses in their BITs can be considered as general, widespread and representative, it remains that it is not uniform and consistent enough for the standard to have crystallised into a customary rule. States also lack the necessary opinio juris when including the clause in their BITs.Table of ContentsFair and Equitable Treatment: Its Interaction with the Minimum Standard and Its Customary Status  Patrick Dumberry  Abstract  Keywords  General Introduction  I The Interaction between the ‘Minimum Standard of Treatment’ and the FET  1.1 The Concept of the MST and Its Customary Status  1.2 The Historical Foundation of the MST  1.3 The Challenge to Existing Customary Rules, Including the MST, Led by Newly Independent States in the 1960s and 1970s  1.4 The New Phenomenon of ‘Treatification’ in the 1990s  2.1 Early Appearance of the Standard in Multilateral Instruments and Current Overwhelming Presence in BITs  2.2 Why Did States Start Referring to the FET Standard Instead of the MST in Their Investment Treaties?  2.3 FET Should be Considered as a Treaty Standard Independent from the MST, Except in Specific Situations  3.1 The Broad Interpretation Given to FET Clauses by Arbitral Tribunals and the Importance They Gave to the Terms Used under These Provisions  3.2 States’ Reactions to These Awards  3.3 CETA: the Ultimate Detailed FET Clause  II Has the FET Standard Become a Rule of Customary International Law?  3.1 Introductory Remarks on the Phenomenon of Custom  3.2 How Can Provisions Contained in BITs Transform into Customary Rules?  3.3 Examination of State Practice  3.3.1 The Practice of States Parties to BITs  3.3.1 State Practice is General and Widespread  3.3.2 State Practice is Representative  3.3.3 State Practice is Not Uniform and Consistent  3.3.2 The Practice of States Outside the Treaty Framework  3.4 Do States Have opinio juris When they Include FET Clauses in their BITs?  General Conclusion Bibliography

Read more less

Book SynopsisIn Principles of Evidence in Public International Law as Applied by Investor-State Tribunals, Kabir Duggal and Wendy Cai explore the fundamental principles of evidence and how these principles relate to burden of proof and standard of proof. By tracing the applications of major principles recognized by the International Court of Justice and applied by investor-state tribunal jurisprudence, the authors offer valuable insight into the interpretation, understanding, and nuances of indispensable principles of evidence, an area that has been ignored in both investor-state arbitration and public international law more generally.Table of ContentsPrinciples of Evidence in Public International Law as Applied by Investor-State Tribunals: Burden and Standard of Proof  Kabir Duggal and Wendy W. Cai  Abstract  Keywords  I Introduction  II Burden of Proof  III Standard of Proof  IV Conclusion  Acknowledgements  Bibliography

Read more less

Book SynopsisIn Jurisdiction and Admissibility in Investment Arbitration, Filippo Fontanelli offers an analysis of the subject for practitioners and scholars. The author undertakes two converging studies: first, the practice of investment tribunals is surveyed to provide a representative overview of how jurisdiction and admissibility operate in arbitration proceedings. Second, these concepts are studied in the wider framework of public international law litigation, in the attempt to solve the definitional issues, or at least trace them back to their theoretical background. The analysis shows that the confusion prevailing in investment arbitration is largely a legacy of the comparable confusion that affects the notions of jurisdiction and admissibility in all kinds of dispute settlement under international law. Whilst the confusion is often irrelevant in the practice, some instances arise where it affects the outcome of the proceedings. The essay discusses some of these instances and recommends adopting a novel approach, which hinges on judicial discretion as the critical element of admissibility.Table of ContentsJurisdiction and Admissibility in Investment Arbitration: The Practice and the Theory  Filippo Fontanelli  Abstract  Keywords  Introduction  PART A The Practice: Jurisdiction and Admissibility in Investment Law Arbitration  PART B The Theory: An Inherited Confusion

Read more less

Book SynopsisIn Addressing Corruption Allegations in International Arbitration, Brody K. Greenwald and Jennifer A. Ivers provide a comprehensive overview of the key issues that arise in international arbitrations involving allegations of corruption by drawing upon their significant experience in these high-stakes cases, including in the only two reported investment treaty cases dismissed specifically as a result of corruption. Their monograph is a valuable resource that analyzes, among other things, the public policy against corruption, the requirements for establishing corruption, issues relating to the burden and standard of proof, how corruption has been proved in practice, and the legal consequences where corruption is established. Mr. Greenwald and Ms. Ivers also assess issues that arise where a sovereign State raises an arbitration defense based on alleged corruption, but does not prosecute the alleged wrongdoers in its domestic courts.Table of ContentsAddressing Corruption Allegations in International Arbitration  Brody K. Greenwald and Jennifer A. Ivers  Abstract  Keywords  I Introduction  I Despite Longstanding Efforts to Combat Corruption, It Remains Endemic in Much of the World  I The Requirements for Establishing Corruption  V The Burden and Standard of Proof for Allegations of Corruption  V From Theory to Practice: Proving Corruption in Investment Arbitration  I The Consequences of Corruption in International Arbitration  I Objections Based on Attribution and Estoppel Where the State Does Not Prosecute the Alleged Corruption  I Conclusion  Bibliography

Read more less

Book SynopsisArbitration clauses in investment treaties often provide investors with a choice between ICSID arbitration, on the one hand, and rules originally drafted for commercial arbitration on the other. The Use of Commercial Arbitration Rules in Investment Treaty Disputes studies how domestic courts and commercial arbitration institutions impact the scope of arbitral tribunal jurisdiction when commercial arbitration rules are used. Based on extensive studies of court decisions and previously-unknown arbitral awards, Joel Dahlquist’s book analyses the practice of domestic courts in reviewing treaty-based jurisdiction, and explains how the two most used commercial arbitration institutions – the ICC and the SCC – have drafted, interpreted and applied their arbitration rules in treaty-based disputes.Table of ContentsAcknowledgements List of Figures Abbreviations Introduction 1 The Research Focus and Its Context  1 Introduction  2 The Bigger Picture  3 First Focus: Domestic Courts’ Interpretation of Treaty-Based Arbitral Tribunal Jurisdiction  4 Second focus: Commercial Arbitration Institutions and Treaty-Based Arbitral Tribunal Jurisdiction  5 Outline 2 Commercial Arbitration Rules in Investment Treaties - A Historic Background  1 The (Very) Early Treaty Practice: ICSID Monopoly  2 The Early Years at ICSID  3 The Rise of Non-ICSID Rules  4 Two Potential Explanations  5 Interim Conclusion 3 Domestic Courts and Lex Loci Arbitri in Treaty-Based Arbitration: Challenges of Awards  1 Challenges of Investment Treaty Arbitration Awards – The Legal Framework  2 Specifijic Issues Arising from Challenges in Domestic Courts  3 Consequences of Challenging Treaty-Based Awards in Domestic Courts 4 Investment Treaty Disputes at Commercial Arbitration Institutions  1 Organization  2 The Arbitration Rules  3 “Jurisdictional” Considerations by Institutions  4 Emergency Arbitration  5 Discussion: The Scope of Institutional Decision-Making 5 Conclusions  1 Introduction  2 Lex Loci Arbitri – the Domestic Anchor  3 Internal Fragmentation  4 Future Outlooks – on the Desirability of Non-ICSID Rules in Investment Arbitration  5 Concluding Remarks

Read more less

Book SynopsisContracts are relevant, frequently central, for a significant number of investment disputes. Yet, the way tribunals ascertain their content remains largely underexplored. How do tribunals interpret contracts in investment treaty arbitration? How should they interpret contracts? Does national law have any role to play? Contract Interpretation in Investment Treaty Arbitration: A Theory of the Incidental Issue addresses these questions. The monograph offers a valuable insight into the practice and theory of contract interpretation in investment treaty arbitration. By proposing a theoretical frame for seamless integration of contract interpretation into the overall structure of decision-making, the book contributes to predictability, coherence, sufficiency and correctness of the tribunals’ interpretative practices in investment treaty arbitration.Table of ContentsForeword Acknowledgements List of Figures and Tables Abbreviations Introduction part 1 Setting the Scene 1 Overview of Contract Interpretation in Investment Treaty Arbitration  1.1 Interpretative Material: Contracts and Contractual Provisions  1.2 Interpretative Occasions  1.2.1 Jurisdiction  1.2.2 Attribution  1.2.3 Expropriation  1.2.4 Fair and Equitable Treatment  1.2.5 National Treatment and Most-Favoured-Nation Treatment  1.2.6 The Umbrella Clause  1.2.7 Compensation  1.3 Procedural Setting  1.4 Patterns for Contract Interpretation  1.5 Conclusion part 2 Defining a Relevant Legal Frame 2 National Laws and Contract Interpretation  2.1 What Do We Know: Comparative Scholarship  2.2 The Concept of Contract Interpretation  2.3 Regulation  2.4 Interpretative Approaches: Good Faith and Predictability  2.5 Limits of Subjective-Objective and Other Dichotomies  2.6 Conclusion 3 International Law and Contract Interpretation  3.1 The Concept of International Law  3.2 Treaties  3.2.1 Rules on Treaty Interpretation  3.2.2 International Investment Agreements  3.2.3 Uniform Private Law Conventions  3.3 Customary International Law  3.4 General Principles of Law  3.5 Subsidiary Means for Determining the Content of International Law  3.5.1 Judicial Practice  3.5.2 Scholarly Publications  3.6 Conclusion part 3 Enabling National Law 4 The Power of Treaty-Based Tribunals to Interpret Contracts  4.1 Theory and Foundation  4.1.1 The Concept and Types of Tribunal Powers  4.1.2 Contract Interpretation as an Inherent Power  4.1.3 Contract Interpretation as an Implied Power  4.2 Exercise  4.2.1 Contract Interpretation or Fact-Finding  4.2.2 Contract Interpretation or Doctrinal Assessment of Contractual Provisions under International Law  4.2.3 Deference  4.3 In a Broader Context  4.3.1 Similar Powers  4.3.1.1 The PCIJ  4.3.1.2 The ICJ  4.3.1.3 The ECtHR  4.3.2 Unsuitable Analogies  4.4 Conclusion 5 Contract Interpretation as the Incidental Issue  5.1 Incidental Issues in Private International Law  5.2 National Law Incidental Issues in Investment Treaty Arbitration  5.2.1 The Predisposition to Conceptualise Incidental Issues  5.2.2 Scholar Attempts to Conceptualise National Law Issues as Incidental Issues  5.2.3 Other Supporting Considerations (1): Direct Conceptualisation – National Law Incidental Issues before Other Public International Law Courts  5.2.4 Other Supporting Considerations (2): Reverse Conceptualisation – Public International Law Incidental Issues in Domestic Contexts  5.2.5 Contribution of Conceptualising National Law Issues as Incidental Issues  5.3 Contract Interpretation as the Incidental Issue in Investment Treaty Arbitration  5.3.1 A Legal Issue  5.3.2 A Separable Legal Issue  5.3.3 Playing a Subsidiary Role to the Principal Cause of Action  5.3.3.1 The Case of Contract Termination  5.3.3.2 The Case of Implied Terms  5.3.4 Posing a Question about the Applicable Law  5.3.5 Additional Consideration: Cases with Compound Jurisdiction  5.4. National Law in Operation through the Concept of an Incidental Issue  5.4.1 Jura Novit Curia  5.4.2 Expert Testimony  5.4.3 Why Does It Matter?  5.5 Conclusion General Conclusion Future Research List of Annexes Annexes  Annex I All Known Treaty-Based Cases as of 30 January 2019  Annex II Cases Excluded from Assessment (Publicly Unavailable Awards and Decisions, or Available Awards and Decisions in Languages Other than English or Russian)  Annex III Cases with Publicly Available Awards and Decisions in English or Russian Language (the Basis for Assessment)  Annex IV Cases with Elements of Contract Interpretation  Annex V Cases with the Application of National Law to Contract Interpretation (Interpretative Rules of National Laws)  Annex VI Cases with the Application of National Law to Contract Interpretation (Interpretation in Light of Various Other Rules of National Laws)  Annex VII Model BITs as of 30 January 2019  Annex VIII List of Analysed BITs  Annex IX Provisions of Some Relevance for Contract Interpretation in the Selected Uniform Private Law Conventions  Annex X IIAs with Reference to Conflict of Laws of the Host State Bibliography Index

Read more less

Book SynopsisIn Investors, States, and Arbitrators in the Crosshairs of International Investment Law and Environmental Protection, Dr Crina Baltag and Ylli Dautaj look at the investor-State dispute settlement system and inquire whether this is the most suitable transnational venue for resolving investment disputes that have an environmental component. This culminates essentially in whether arbitration is a legitimate forum and whether privately appointed arbitrators appropriately can resolve environmental-related disputes. These disputes are bound to increase in frequency because host-States are also partaking in global efforts to respond to environmental challenges.Table of ContentsInvestors, States, and Arbitrators in the Crosshairs of International Investment Law and Environmental Protection  Crina Baltag and Ylli Dautaj  Abstract  Keywords  1 Introduction  2 Sustainable Development: The Interaction between Investment Law, Environmental Law, and Investor-State Dispute Settlement  3 Treaties and Arbitral Case Law  4 Backlash, Legitimacy, and Workability  5 Concluding Remarks  5 Bibliography

Read more less

Book SynopsisIn The Spratly Islands and International Law, Xuechan Ma offers a detailed analysis of legal solutions to achieve coexistence and cooperation in the Spratly Islands in the absence of maritime delimitation. This book challenges the classical territoriality model of jurisdiction in international law, which is ineffective in the Spratly Islands context where complex and contentious situations call for different solutions. Based on the substance-procedure duality of international law, Ma draws on extensive sources of international law including cases, treaties, practice and doctrine, and formulates novel, concrete proposals to indicate the way forward for the Spratly Islands.

Read more less

Book SynopsisBased on analysis of 21 arbitral awards rendered in the “Spanish saga” cases, this book discusses the current challenges faced by international investment law in the renewable energy sector, addressing questions such as which facts led to the unprecedented number of investor-state arbitrations filed against Spain, whether arbitral awards rendered against Spain have an impact on future proceedings commenced against other states, and which legal grounds in international law serve, or may potentially serve, as the basis for investors’ claims in the renewable energy sector. Filip Balcerzak offers critical insight into generally applicable lessons for the future—both for adjudicators of renewable energy disputes and for policy-makers.Table of ContentsAcknowledgments List of Tables List of Abbreviations 1 Introduction 2 Facts  1 Introduction  2 RE Technologies Relevant to the Spanish Saga  3 European Context  4 Relevant Domestic Regulatory Framework  5 2010 Disputed Measures  6 2012 Disputed Measures  7 2013–2014 Disputed Measures  8 2019 Measures  9 Spanish Domestic Courts’ Judgments  10 Cases   10.1 Charanne   10.2 Isolux   10.3 Eiser   10.4 Novenergia   10.5 Masdar   10.6 Antin   10.7 Foresight   10.8 RREEF   10.9 Cube   10.10 NextEra   10.11 9REN   10.12 SolEs   10.13 InfraRed   10.14 OperaFund   10.15 BayWa   10.16 Stadtwerke   10.17 RWE   10.18 Watkins   10.19 PV Investors   10.20 Hydro   10.21 Cavalum  11 Conclusions 3 Jurisdiction  1 Intra-EU Objection   1.1 General Comments   1.2 Spanish Saga Case Law    1.2.1 PV Investors    1.2.2 Charanne    1.2.3 RREEF    1.2.4 Isolux    1.2.5 Eiser    1.2.6 Novenergia    1.2.7 Masdar    1.2.8 Antin    1.2.9 Foresight    1.2.10 Cube    1.2.11 NextEra    1.2.12 9REN    1.2.13 SolEs    1.2.14 InfraRed    1.2.15 OperaFund    1.2.16 BayWa    1.2.17 Stadtwerke    1.2.18 RWE    1.2.19 Watkins    1.2.20 Hydro    1.2.21 Cavalum   1.3 Lessons Learned    1.3.1 First Lesson Learned – the Spanish Saga Cases Were an Important Contribution to the Factual Matrix Which Led to the 2021 Komstroy Judgment    1.3.2 Second Lesson Learned – the Tensions between EU Law and Protection under the ECT Are Far from Being Resolved in a Final Manner, and the Main Points of the Debate Have Evolved over Time    1.3.3 Third Lesson Learned – the Differences between ICSID and Non-ICSID Arbitrations have Become More Important Than Ever Before    1.3.4 Fourth Lesson Learned – the Nature of the Intra- EU Objection Can Be Classified as Rationae Personae  2 Tax Carve-Out Objection   2.1 General Comments   2.2 Spanish Saga Case Law    2.2.1 PV Investors    2.2.2 Charanne    2.2.3 RREEF    2.2.4 Isolux    2.2.5 Eiser    2.2.6 Novenergia    2.2.7 Masdar    2.2.8 Antin    2.2.9 Foresight    2.2.10 Cube    2.2.11 NextEra    2.2.12 9REN    2.2.14 InfraRed    2.2.15 OperaFund    2.2.16 BayWa    2.2.17 Stadtwerke    2.2.18 RWE    2.2.19 Watkins    2.2.20 Hydro   2.3 Lessons Learned    2.3.1 First Lesson Learned – Arbitral Tribunals Not Only Can, but Must, Commence Their Analysis by Looking beyond the “Label” of a Tax, to Decide Whether a Disputed Measure Fulfils CIL’s Prerequisites    2.3.2 Second Lesson Learned – Tax Carve-Out Clauses Do Not Apply to Mala Fide Measures 4 Liability  1 Fair and Equitable Treatment   1.1 General Comments   1.2 Spanish Saga Case Law    1.2.1 Charanne    1.2.2 Charanne – Dissenting Opinion    1.2.3 Isolux    1.2.4 Isolux – Dissenting Opinion    1.2.5 Eiser    1.2.6 Novenergia    1.2.7 Masdar    1.2.8 Antin    1.2.9 Foresight    1.2.10 Foresight – Dissenting Opinion    1.2.11 RREEF    1.2.12 RREEF – Dissenting Opinion    1.2.13 Cube    1.2.14 Cube – Dissenting Opinion    1.2.15 NextEra    1.2.16 9REN    1.2.17 SolEs    1.2.18 InfraRed    1.2.19 OperaFund    1.2.20 OperaFund – Dissenting Opinion    1.2.21 BayWa    1.2.22 BayWa - Dissenting Opinion    1.2.23 Stadtwerke    1.2.24 Stadtwerke – Dissenting Opinion    1.2.25 RWE    1.2.26 RWE – Dissenting Opinion    1.2.27 Watkins    1.2.28 Watkins – Dissenting Opinion    1.2.29 PV Investors    1.2.30 PV Investors – Dissenting Opinion    1.2.31 Hydro    1.2.32 Cavalum    1.2.33 Cavalum – Dissenting Opinion   1.3 Lessons Learned    1.3.1 First Lesson Learned – Regulatory Frameworks Can Create Legitimate Expectations That Are Protected by International Investment Treaties    1.3.2 Second Lesson Learned – the Content of Domestic Law Is Crucial to Determine the Scope of Legitimate Expectations Based on a Regulatory Framework    1.3.3 Third Lesson Learned – Legal Due Diligence Is Essential to Ensuring the Existence of Legitimate Expectations to Regulatory Stability in Highly Regulated Sectors    1.3.4 Fourth Lesson Learned – the Sovereign Right to Regulate Has Its Limits, Which Is Related to the Rule of Law    1.3.5 Fifth Lesson Learned – the FET Involves a Balancing Exercise    1.3.6 Sixth Lesson Learned – Contractual Obligations Can Be Game Changers  2 Expropriation   2.1 General Comments   2.2 Spanish Saga Case Law    2.2.1 Charanne    2.2.2 Isolux    2.2.3 Eiser    2.2.4 Novenergia    2.2.5 Foresight    2.2.6 Cube    2.2.7 9REN    2.2.8 SolEs    2.2.9 InfraRed    2.2.10 BayWa    2.2.11 Hydro    2.2.12 Cavalum    2.3 Lessons Learned    2.3.1 First Lesson Learned – the Impact of the State’s Measures on Attributes of Ownership and/or Control Are Relevant Factors in Assessing Whether a Substantial Deprivation Occurred, and Continued Ownership and/or Control of Investments Elevates the Threshold to Be Met by the Economic Impact of the Disputed Measures    2.3.2 Second Lesson Learned – General Regulatory Measures Can Result in Indirect Expropriation  3 Umbrella Clause   3.1 General Comments   3.2 Spanish Saga Case Law    3.2.1 Isolux    3.2.2 Eiser    3.2.3 Novenergia    3.2.4 Masdar    3.2.5 Antin    3.2.6 Foresight    3.2.7 RREEF    3.2.8 Cube    3.2.9 NextEra    3.2.10 9REN    3.2.11 SolEs    3.2.12 InfraRed    3.2.13 OperaFund    3.2.14 BayWa    3.2.15 Stadtwerke    3.2.16 RWE    3.2.17 Watkins    3.2.18 Cavalum   3.3 Lessons Learned    3.3.1 First Lesson Learned – General Legislation, Directed at a Broad Class of Addressees, Falls outside the Scope of the Umbrella Clause    3.3.2 Second Lesson Learned – the Umbrella Clause May Apply Provided That a PPA Is Concluded between the Investor and an Agency Whose Actions Are Attributable to the State 5 Remedies  1 Restitution   1.1 General Comments   1.2 Spanish Saga Case Law    1.2.1 Charanne and Isolux    1.2.2 Eiser    1.2.3 Novenergia    1.2.4 Masdar    1.2.5 Antin    1.2.6 Foresight    1.2.7 RREEF    1.2.8 Cube    1.2.9 NextEra    1.2.10 9REN    1.2.11 SolEs    1.2.12 InfraRed    1.2.13 OperaFund    1.2.14 BayWa    1.2.15 Stadtwerke    1.2.16 RWE    1.2.17 Watkins    1.2.18 PV Investors    1.2.19 Hydro    1.2.20 Cavalum   1.3 Lessons Learned    1.3.1 First Lesson Learned – Restitution May Be Awarded in Investor-State Arbitrations, Although It Is Inappropriate in cases concerning Violations of Investment Treaties Caused by Regulatory Changes, Given the Disproportionate Impact on a Sovereign State’s Legislative Autonomy    1.3.2 Second Lesson Learned – If Restitution Is Awarded, Art. 26(8) ECT Requires to Enable the Respondent to “Pay Monetary Damages in Lieu of” Restitution. It Is Recommended That, Even outside the ECT Context, Similar Reservations Are Made in the Operative Parts of Arbitral Awards in Order to Respect State Sovereignty  2 Compensation   2.1 General Comments   2.2 Spanish Saga Case Law    2.2.1 Charanne and Isolux    2.2.2 Eiser    2.2.3 Novenergia    2.2.4 Masdar    2.2.5 Antin    2.2.6 Foresight    2.2.7 RREEF    2.2.8 RREEF – Dissenting Opinion    2.2.9 Cube    2.2.10 NextEra    2.2.11 9REN    2.2.12 SolEs    2.2.13 InfraRedMethodology and Calculations    2.2.14 OperaFund    2.2.15 BayWa    2.2.16 Stadtwerke    2.2.17 RWE    2.2.18 Watkins    2.2.19 PV Investors    2.2.20 Hydro    2.2.21 Cavalum   2.3 Lessons Learned    2.3.1 First Lesson Learned – DCF Is the Most Common Valuation Method Applied in Disputes concerning the RE Sector. The Highly Regulated Nature of the RE Sector Enables the DCF to Be Applied to Assess Compensation Even regarding Investments Which Have a Shorter Operating Track Record Than Would Be Required in Other Sectors    2.3.2 Second Lesson Learned – Arbitration Provides Flexibility regarding the Procedure to Be Used, Which Allows Tribunals to Request Calculations to Be Prepared Jointly by the Parties’ Appointed Experts    2.3.3 Third Lesson Learned – Claimants May Request a Tax Gross-Up, but They Face a High Evidentiary Threshold to Prove That a Specific Tax Will Apply and That It Is More Burdensome Than the Tax Which Would Have Applied (in the But-for Scenario) to Profits Which Would Have Been Obtained If the Treaty Had Not Been Violated 6 Conclusions Bibliography   Books and Reports   Articles and Book Chapters   Arbitral Documents (Awards, Decisions, Opinions, etc.)   Judgments and Opinions of the International Court of Justice and the Permanent Court of International Justice   Judgments and Opinions of the Court of Justice of the European Union and Its Predecessor   International Treaties   Spanish legislation   Spanish courts’ judgments   Other sources Index

Read more less

Book SynopsisThis collection of essays celebrating the work of Professor Marcelo Kohen brings together the leading scholars and practitioners of public international law from different continents and generations to explore some of the most challenging issues of contemporary international law. The volume is a testimony of esteem and friendship from colleagues and former students, and it covers a vast expanse, reflecting the width and diversity of Professor Kohen’s own contribution. Written in English, French and Spanish, the essays in this volume will appeal to a broad public of academics, practitioners and students of international law from around the world.

Read more less

Book SynopsisThe hospitality and construction industries are international economic drivers, with complex economic relationships and diverse legal issues. Cases and rulings are not static and move along a continuum in time and context. The evolution of legal agreements and disputes in hospitality and construction are not confined to any sort of strict schedule. This volume addresses the many cases and experiences of parties, counsel and arbitrators during the pandemic, and discusses issues such as key contract provisions, the impact of the COVID pandemic on investment treaties, and access to arbitral institutions.Table of ContentsForeword Hospitality and Construction – Two Candidates for Legal Harmonisation List of Figures and Tables Notes on Contributors Part 1   Introduction: Hospitality Disputes   Hadrian Beltrametti-Walker 1 Funding Construction and Hospitality Disputes in the Time of covid   Fernando Ortega and Giacomo Lorenzo 2 After covid, Unintended Economic Partners and Adversaries When Banks Foreclose on Properties – a Game Theory Approach: Coopetition   Amadeu Blasco Muñoz 3 The Importance and Impact of Risk Allocation Clauses for Payment Obligations in Hospitality Contracts as Demonstrated by covid-19 Litigation   John D. Wilburn, Richard D. Holzheimer, Jr. and Kang He 4 Disputes under Hotel Management Agreements: before, during, and After covid-19   Thomas R. Snider and Greig Taylor 5 Government Measures and Investment Treaty-Based Claims   Eckhard Hellbeck 6 The Private and Public International Law Dimension of Arbitrations Arising Out of the Hospitality Industry as a Result of the covid-19 Pandemic   Bernhard Maier and Olivia Flasch Part 2   Introduction: Construction Disputes   Katherine Simpson 7 Abeyance to Resuscitation – Construction Arbitration in the Post-covid Era   Gautam Mohanty and Yasaschandra Devarakonda 8 Investor-State Arbitration and the International Construction Sector   R. Zachary Torres-Fowler, Jamey Collidge, and Cindy Lee 9 Expedited Arbitration as an Alternative to Dispute Boards during the Course of International Construction Projects   Pierre Yves Gunter and Anya Marinkovich 10 To What Port You Sail: Make Your Call on Demand Guarantees   Martina Magnarelli 11 covid and Construction Disputes: Lessons Learnt and the Future Outlook   Oluwaseun Oloruntimehin   Conclusion   Steven G. Shapiro Index

Read more less

Book SynopsisChina’s foreign investment legal regime encompasses domestic laws governing inward and outward investments, investment treaties and the Belt and Road Initiative. Can China’s foreign investment legal regime lead its two-way investments towards the country’s five development goals (building technological capacity, deepening integration into the global economy, promoting green development, protecting security, and participating in global economic governance and rule-making)? Yawen Zheng pioneers a systematic study of China’s foreign investment legal regime, finding that the regime has gradually made progress towards the development goals, but the effort is diluted by obstacles such as outdated treaties, conflicts with the West, and domestic political challenges.Table of ContentsPreface and Acknowledgements List of Figures and Tables List of Legislation, Normative Documents, Treaties and Non-binding Documents   Chinese Legislation and Normative Documents    Chinese Laws and Amendments Passed by the National People’s Congress    Administrative Regulations and Normative Documents Passed by the State Council    Rules and Normative Documents Passed by Organs of the State Council    Local Regulations and other Normative Documents   China’s Investment Treaties and Treaties with Investment Provisions   Other China’s Agreements and Treaties   Other Legislation and Institution Rules, Non-binding Documents,Conventions and Treaties List of Cases Abbreviation and Acronyms 1 China’s Two-Way Investments and Its Development Goals  1 China’s Development Goals Relating to Its Foreign Investments   1.1 Building Technological Capacity   1.2 Deepening Integration into the Global Economy   1.3 Promotion of Green Development   1.4 Protection of Security   1.5 Participation in Global Economic Governance and Rule-Making   1.6 Requirements of the Development Goals for China’s Foreign Investment Legal Regime  2 Historical Development of China’s Inward Foreign Investments  3 Historical Development of China’s Outward Foreign Investments 2 China’s Domestic Law Governing Inbound Foreign Direct Investment  1 Historical Development of China’s Domestic Foreign Investment Legal Regime   1.1 Historical Evolution of the Laws Governing the Three Major Types of FIE s   1.2 The Change of Guideline Catalogues of Foreign Investment Industries and Project Approval Procedures   1.3 The Incremental Establishment of the National Security Review Mechanism  2 The Recent Reform of China’s Foreign Investment Legal Regime   2.1 Positive Steps towards China’s Development Goals   2.2 False Steps towards China’s Development Goals  3 Conclusion 3 China’s Domestic Law Governing Outbound Foreign Direct Investment  1 Historical Development of China’s Domestic Legal Regime Governing ODI s before “Going-out”  2 Ex ante and ex post Supervision of China’s ODI s   2.1 Ex ante Supervision of Overseas Investment Projects   2.2 Ex ante Supervision of Overseas Enterprises   2.3 Ex post Supervision of ODIs  3 Promotion of China’s ODI s  4 Protection of China’s ODI s   4.1 Service Provided by the Authorities   4.2 Investment Insurance  5 Possibility of Establishing China’s Investment Court  6 Conclusion 4 China’s Investment Treaties and Treaties with Investment Provisions  1 Treaty Contents That Directly Incorporate China’s Development Goals   1.1 Preamble   1.2 Investment Promotion Clause   1.3 Not Lowering of Standard Clause   1.4 General Exception Clauses   1.5 Criteria to Determine Indirect Expropriation  2 Provisions That Can Be Designed to Suit the Need of China’s Development Goals   2.1 Definition of Investment   2.2 NT Clause   2.3 MFN Treatment   2.4 FET Clause   2.5 Obligation of FPS  3 The Approaches of Treaty Implementation   3.1 Institutional Arrangements for Implementation   3.2 Investor-State Arbitration  4 Dealing with China’s Existing Treaties That Fail to Meet theRequirements of the Development Goals  5 Conclusion 5 The “Belt and Road” Initiative and China’s Development Goals  1 BRI and Building Technological Capacity  2 BRI and Promoting Green Development  3 BRI and Participating in Global Economic Governance and Rule-Making  4 BRI and Investment Promotion  5 Challenges of Implementing the BRI  6 Proposal of Making a Comprehensive BRI Investment Treaty   6.1 Necessity and Approach of Making a BRI Investment Treaty   6.2 Essential Contents of the BRI Investment Treaty  7 Conclusion Concluding Remarks Bibliography   Books   Book Chapters   Journal Articles   Online Articles   Official Documents, Reports and Speeches   News Media   Web Pages Index

Read more less

Book SynopsisFernando Tupa addresses the sometimes-overlooked yet fundamental principle that consent to international arbitration is forum-specific, and explores its significance and practical consequences for investment tribunals. The author proposes that, if there is only consent “in principle” to international arbitration by the host State in an investment agreement due to the lack of a forum (or the unavailability of the forum contemplated therein), a foreign investor would not be entitled to unilaterally initiate an investment claim against the host State under said agreement, absent a subsequent agreement between the foreign investor and the host State on an arbitral forum. He also draws some conclusions and warns against the dangerous consequences of ignoring this basic principle.

Read more less

Book SynopsisThis book presents the first comprehensive analysis of the risk of double compensation, often called double recovery, in the investor-State dispute settlement (ISDS) system and proposes a practical solution to the problems which double compensation creates. The book responds to all the key questions that legal counsel, arbitrators, judges, and scholars facing the double compensation issue may have, including: What requirements must be met for the problem to arise? What have others said and done about the problem? What is the most effective way to tackle it? The proposed solution is based on currently available legal doctrines and practice and strikes a balance between investors’ and States’ interests.Table of Contents Introduction Part I Contours of the Problem 1 Existence and Extent of the Problem: A Snapshot 2 Choosing the Right Term (Because It Makes a Difference) 3 Types of Claims Vulnerable to Double Compensation 4 Definition, Requirements, and Scenarios  Executive Summary I Part II Existing Approaches to Double Compensation 5 ISDS Case Law 6 Analysis of Suggested Solutions  Executive Summary II Part III Restating the Law on Double Compensation 7 Principle of Prohibition of Double Compensation 8 Application of the Principle: Fundamentals 9 Application of the Principle: Possible Scenarios 10 Application of the Principle: Exceptional Situations  Executive Summary III  Conclusion

Read more less

Book SynopsisHow do host states and foreign investors balance the need for legal stability and regulatory flexibility in the complex world of international investment, against the backdrop of an ever-evolving global economy? This book uncovers unique insights into the delicate balance between legal stability and flexibility. Through in-depth analysis and real-world case studies, Dr. Abdallah Ali unveils the secrets behind stabilization and renegotiation clauses, demystifying their impact on investors, governments, and global trade. With rare access to historical data and illuminating examples, this work is an invaluable resource for legal practitioners, policymakers, and investors navigating the complexities of international investment terrain.Table of ContentsPreface Acknowledgments List of Figures and Tables Abbreviations 1 Introduction  1.1 Background  1.2 Aims, and Objectives  1.3 Overview of Methodology 2 Traditional Contractual Stabilization Clauses  2.1 Introduction  2.2 Definition of Stabilization Clauses  2.3 Origins of Stabilization Clauses  2.3.1 Stabilization through Investment Contracts  2.3.2 Stabilization through Domestic Laws  2.3.3 Stabilization through iia s  2.3.4 Stability through a Multi-tiered Approach  2.4 Justification and Purpose of Stabilization Clauses  2.4.1 From the Perspective of a Foreign Investor  2.4.2 From the Perspective of Foreign Project Financiers  2.4.3 From the Host State’s Perspective  2.5 Types of Stabilization Clauses  2.5.1 Traditional Stabilization Clauses  2.5.2 Modern Stabilization Clauses  2.5.3 Hybrid Stabilization Clauses  2.6 At What Point Are Stabilization Clauses Typically Included in State Contracts? (An Analysis Using Statistical Methods)  2.7 Validity and Legal Effect of Traditional Stabilization Clauses  2.7.1 Validity and Legal Effect of Stabilization Clauses under Domestic Law  2.7.2 Validity and Legal Effect of Stabilization Clauses under International Law  2.8 Stabilization Clauses in Empirical Work  2.9 Conclusion 3 Renegotiation Clauses  3.1 Introduction  3.2 Definition of Renegotiation Clause  3.3 History and Background of Renegotiation  3.4 Types of Renegotiations  3.4.1 Renegotiation Based on Situation  3.4.2 Renegotiation Based on the Parties  3.5 Contract with and without Traditional Renegotiation Clause  3.5.1 Contract without Traditional Renegotiation Clause  3.5.2 Contract with Renegotiation Clause  3.6 The Significance of Renegotiation Clause in the State Contract  3.6.1 Salvage the State Contract  3.6.2 Changing Circumstances  3.6.3 Filling Gaps  3.6.4 Providing Flexibility for Differing Cultural Attitudes  3.7 Limitations and Constraints of Renegotiation Clauses  3.8 Recalibration and Recommendations  3.9 Conclusion 4 Reconceptualizing the Legislative Stabilization Clause  4.1 Introduction  4.2 A New Taxonomy of Legislative Stabilization Clauses  4.2.1 Aspirational lsc s  4.2.2 Standard lsc s  4.2.3 Contractual lsc s  4.3 Recalibration and Recommendations  4.4 Conclusion 5 Legal Stability Guarantees in International Investment Agreements  5.1 Introduction  5.2 International Investment Agreements’ Stabilization Clauses (iia sc)  5.3 Legal Stability under Fair and Equitable Treatment Standard (fet)  5.3.1 fet Standard Includes a Guarantee of Legal Stability (Pro-investor Approach)  5.3.2 Rejectionist Approach of Linking the fet Clause and Legal Stability in the Strict Sense (Reasonableness Approach)  5.4 Recent Treaty Practice  5.5 Conclusion 6 Summary and Final Conclusions Table of Cases Table of International Investment Agreements and Other International Instruments/Documents Appendix Bibliography Index

Read more less