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 […]
Bilateral Investment Treaty
The 2018 Draft Netherlands Model BIT – The Beginning of a New Era?
The year 2018 may be an important milestone in international investment arbitration concerning the Netherlands due to the 2018 Draft Netherlands Model BIT (the ‘Draft’) . The Draft contains several completely new provisions, absent in the 2004 version, and provides a narrow vision of other provisions in comparison to their 2004 predecessors. We will discuss the […]
Vodafone versus India Investment Treaty Arbitration
The Vodafone versus India investment treaty arbitratoin has its origins in 2007 when Vodafone acquired a majority stake in India’s Hutchison Essar[1]. It was a Cayman island transaction. Essentially, Vodafone used the tax haven to escape the jurisdiction of India’s tax authorities. Retroactive Taxation It was therefore unsurprising when, in 2012, the Indian Supreme Court […]
Arbitration Disputes in the Banking Sector: Sudden Changes of Legal Frameworks
A sudden change of the banking sector legal framework has provoked a tide of arbitrations against South-Eastern European States. Interventionist measures enacted by host States of investment have harmed the position of foreign banks on the local market. Consequently, banks have decided to initiate arbitral proceedings to protect their interests. Countries in South-Eastern Europe have […]
MFN Clauses: Recent Developments in Investment Arbitration
The applicability of MFN clauses (“most-favoured nation” clauses) remains a controversial topic in investment arbitration. The Maffezini tribunal[1] was the first arbitral tribunal that interpreted the applicability of an MFN clause to allow the importation of a more favourable treaty provision in a published award. In this case, the MFN clause effectively removed the local litigation […]
States as Claimants in Investment Arbitration
In classic investment arbitration disputes, an investor brings claims against a host country under an investment treaty, an investment contract, or both. Since only States are parties to bilateral investment treaties, they have obligations under these agreements. These treaties aim to give rights to foreign investors. Thus, the growth of investment disputes over the last […]
Bilateral Arbitration Treaties (BAT’s): An Update
A recent proposal for a new form of international arbitration through bilateral arbitration treaties has yet to catch fire. Part of the reason may stem from user uncertainty. Bilateral Arbitration Treaties: The Idea Bilateral Arbitration Treaties have captured increasing interest since their initial proposal in 2012.[1] Modelled upon bilateral investment treaties (“BIT’s”), Bilateral Arbitration Treaties […]
Le principe de libre transfert dans l’arbitrage d’investissement
La clause de libre transfert figure généralement parmi les clauses protectrices des investissements des investisseurs étrangers prévues par les traités bilatéraux d’investissement (ci-après les « TBI »). Ce blog se focalisera tant sur le contenu de ce principe de protection que sur les restrictions légitimes pouvant y être apportées. Le contenu du principe de libre transfert Par […]
Investor-State Dispute Settlement in Intra-EU BITs Is Incompatible with EU Law – Case C-284/16
On 6 March 2018, the Court of Justice of the European Union (“CJEU”) found that investor-State dispute settlement (“ISDS”) in intra-EU BIT’s is incompatible with EU law. The CJUE rendered the important Achmea judgment against the Opinion of the Advocate General Wathelet and found that: “Articles 267 and 344 TFEU must be interpreted as precluding a provision in an international agreement […]
