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Investment Arbitration

The Salini Test in ICSID Arbitration

16/09/2018 by Aceris Law LLC

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. […]

Filed Under: ICSID Arbitration, International 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

Contributory Negligence in Investment Arbitration

06/06/2018 by Aceris Law LLC

contributory-negligence-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 […]

Filed Under: International Arbitration, Investment Arbitration

Vodafone versus India Investment Treaty Arbitration

04/06/2018 by Aceris Law LLC

Vodafone 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 […]

Filed Under: Bilateral Investment Treaty, India Arbitration, International Arbitration, Investment Arbitration

Enforcing an Investment Arbitration Award: When States Refuse to Pay

02/06/2018 by Aceris Law LLC

Enforcing Investment Arbitration Award

Enforcing an investment arbitration award against a sovereign State is not easy. It is particularly hard when that State firmly refuses to pay after losing an arbitration. Such a situation is obviously problematic for an investor. An investor must spend considerable resources, usually in the realm of millions of dollars, prior to receiving a favorable […]

Filed Under: Enforcement of Arbitration Awards, ICSID Arbitration, Investment Arbitration

Arbitration Disputes in the Banking Sector: Sudden Changes of Legal Frameworks

01/06/2018 by Aceris Law LLC

Banking Sector Arbitration

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 […]

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

MFN Clauses: Recent Developments in Investment Arbitration

25/05/2018 by Aceris Law LLC

MFN 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 […]

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

States as Claimants in Investment Arbitration

23/05/2018 by Aceris Law LLC

State 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 […]

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

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