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 […]
Investment Arbitration
Appellate Mechanisms for ISDS: 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. […]
Investor-State Arbitration: Who Qualifies as a Foreign Investor?
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 […]
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 […]
The Salini Test in ICSID Arbitration
Article 25(1) of the ICSID Convention states that “[t]he jurisdiction of the Centre shall extend to any legal dispute arising directly out of an investment”. The manner in which tribunals have applied this provision has gradually evolved and has been subject to considerable debate. The Salini Test has been at the heart of this debate. […]
How Do Investment Arbitration Tribunals Interpret 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 […]
Duty to Mitigate Damages in Investment Arbitration
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 […]
Contributory Negligence in Investment Arbitration
Contributory negligence in investment arbitration (also known as “contributory fault”) corresponds to situations where an injured party has materially contributed, by a negligent (or wilful) act or omission, to the damage caused by an internationally wrongful act of a State. The contribution of the injured party is, therefore, taken into consideration by arbitral tribunals in […]
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 […]