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 […]
Investment Arbitration
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 […]
Enforcing an Investment Arbitration Award: When States Refuse to Pay
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 […]
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 […]
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 […]
Third-Party Funding Report Presented by Task Force
In Sydney, an ICCA-Queen Mary task force presented a third-party funding report for international arbitration. This 272-page report is rather comprehensive and a useful resource for those interested in third-party funding and the issues it poses in the field of international arbitration. The first two chapters provide a summary of the current state of the market […]
