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Bilateral Investment Treaty

Final Version of the Netherlands Model BIT Released

01/01/2019 by Aceris Law LLC

Final Netherlands BIT

Previously, we analysed the main features of the 2018 Draft Netherlands Model BIT and concluded that the instrument could mark a new era in investment arbitration in the Netherlands. The Draft was open to consultation until 18 June 2017. The finalized text was adopted and released on 19 October 2018. The final version of the […]

Filed Under: Bilateral Investment Treaty, Investment Arbitration, Netherlands Arbitration

Legitimate Expectations in Investment Arbitration

14/10/2018 by Aceris Law LLC

Expectations in Investment Arbitration

In its judgment rendered on 1 October 2018 in the Bolivia v. Chile case, the International Court of Justice drew a distinction between public international law and investment arbitration with respect to the notion of legitimate expectations. The Court held that, contrary to bilateral investment treaties where the principle of legitimate expectations of foreign investors […]

Filed Under: Bilateral Investment Treaty, Investment Arbitration, Public International Law

The National Treatment Standard – Investment Arbitration

04/10/2018 by Aceris Law LLC

Investment Arbitration

Violations of the National Treatment standard are often alleged by claimants involved in investment arbitrations. The National Treatment standard has a simple theoretical purpose: to ensure that foreign investors or their investments will be treated no less favourably than domestic investors or their investments. The application of the National Treatment standard can vary significantly depending […]

Filed Under: Bilateral Investment Treaty, Investment Arbitration

The Standard of Full Protection and Security for Foreign Investors

02/10/2018 by Aceris Law LLC

Protection and Security for Foreign Investors

The standard of full protection and security is one of the basic principles of investment protection applicable to investor-State arbitrations. Its content, scope of application and the sanctioned behaviors of host States of investment can be diverse. Doctrinal Definition of the Standard of Full Protection and Security According to doctrine, the standard of full protection […]

Filed Under: Bilateral Investment Treaty, Investment Arbitration

Appellate Mechanisms for ISDS: Inconsistency & Unpredictability of Arbitration Awards

30/09/2018 by Aceris Law LLC

Inconsistency & Unpredictability of Arbitration Awards

Investor-State Dispute Settlement (“ISDS”) has been criticized for the lack of an appellate mechanism and the inconsistency and unpredictability of certain arbitration awards that are rendered. Opponents of ISDS claim that, as decisions that may ultimately affect public interests are at stake, it is undesirable that wrong decisions taken by arbitral tribunals cannot be appealed. […]

Filed Under: Arbitration Rules, Bilateral Investment Treaty, Investment Arbitration

Investor-State Arbitration: Who Qualifies as a Foreign Investor?

28/09/2018 by Aceris Law LLC

Investor-State Arbitration

The simplest investment protections to understand, as well as the widest, are usually provided in Bilateral Investment Treaties (“BIT’s”). Protection via BIT’s is not granted to every foreign entity that is impacted by the measures of a host State of investment, however. In order to enjoy protection under BIT’s, business actors must qualify as investors […]

Filed Under: Bilateral Investment Treaty, Investment Arbitration

Valuation Date of Expropriated Investment in Investor-State Arbitration

18/09/2018 by Aceris Law LLC

Valuation Date of Expropriated Investment in Investor-State Arbitration

The valuation date of an expropriated investment represents a crucial factor in assessing the amount of compensation to be paid in investor-State arbitrations, as the value of investments may change dramatically over the course of time. Arbitral tribunals are keenly aware that the value of investments change over time. For example, the Iran-US Claims Tribunal […]

Filed Under: Bilateral Investment Treaty, Damages in Arbitration, Investment Arbitration

How Do Investment Arbitration Tribunals Interpret Investment Treaties?

19/08/2018 by Aceris Law LLC

Arbitration Investment Treaties

When interpreting a treaty provision, arbitral tribunals should first and foremost look at the “ordinary meaning of the terms”. This methodology is prescribed by Article 31 of the 1969 Vienna Convention on the law of treaties (VCLT). VCLT Articles 31-32 are codifications of customary international law. The interpretative approach prescribed by these articles should be […]

Filed Under: Bilateral Investment Treaty, ICSID Arbitration, Investment Arbitration

Duty to Mitigate Damages in Investment Arbitration

17/08/2018 by Aceris Law LLC

Investment Arbitration Damages

Notion of the Duty to Mitigate Damages Along with contributory negligence, a duty to mitigate damages is considered as a “compensation-reducing”[1] factor. However, contrary to contributory negligence, the duty to mitigate damages arises only after the breach of an international obligation. It implies an obligation for an aggrieved party to “take steps to minimize his loss, on […]

Filed Under: Bilateral Investment Treaty, Damages in Arbitration, ICSID Arbitration, Investment Arbitration

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