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  • Title: FREE: NGOs seek leave to intervene in ICSID arbitration arising out of South Africa’s treatment of foreign mining companies - Investment Arbitration Reporter (IAReporter)
    Descriptive info: You are here:.. FREE: NGOs seek leave to intervene in ICSID arbitration arising out of South Africa’s treatment of foreign mining companies.. publication date:.. Jul 21, 2009.. Previous.. |.. Next..  .. By Luke Eric Peterson.. A group of 4 non-governmental organizations have petitioned an arbitration tribunal at the International Centre for Settlement of Investment Disputes (ICSID) for leave to intervene in a politically-sensitive arbitration between the European owners of certain South African mining companies and the Republic of South Africa.. *.. The arbitration, Foresti and others v.. South Africa**, has attracted considerable public interest because a part of the investors claim centers upon the implementation of so-called Black Economic Empowerment (BEE) measures in South Africa.. However, it remains to be seen whether the arbitration itself will proceed, as the case has been suspended for parts of this year as the claimants pursue certain domestic administrative processes related to their investments (see below).. Background to the case.. The claimants in the Foresti arbitration allege that their investments in the South African mining sector have been harmed by the Minerals and Petroleum Resources Development Act (MPRDA), leading to an expropriation and unfair treatment contrary to the terms of South African investment protection treaties with Italy and Belgium Luxembourg.. The MPRDA vested all mineral rights with the South African state and invited long-standing owners to apply for permission to convert their old order rights into new order rights within a prescribed timeframe.. As part of this conversion process, license applicants would need to demonstrate their commitment to so-called Black Economic Empowerment objectives, including plans for meeting specific social, labour and development objectives.. In response to the MPRDA, a clutch of Italian and Luxembourg-based investors, with investments in South Africa s mining sector, turned to arbitration at ICSID in 2006.. The case has moved slowly, and has been suspended for several months this year while the claimants pursue certain conversion applications in South Africa.. Recently, this stay has lapsed, however the claimants are asking the tribunal to extend the stay.. The Republic of South Africa has opposed an extension of the stay.. Under the current procedural calendar, the claimants are required to file their Reply memorial in early October.. Already, the claimants and the respondent have filed a Memorial and Counter-Memorial in the case; however in keeping with the practice in most ICSID cases, these documents have not been made public.. As is described below, a key objective of the would-be intervenors in the Foresti case is to obtain copies of the key documents filed in the ICSID arbitration.. Would-be intervenors want BITs to be interpreted in light of equality goals.. In their petition to intervene in the ICSID arbitration, the applicants emphasize that the case raises a number of issues that are of direct concern to South African citizens and the civil society groups that represent them, as well as a wide range of issues of concern to the citizens of all countries.. In particular they stress that the legislation at the center of the ICSID arbitration, the 2002 Mineral and Petroleum Resource Development Act (MPRDA), was enacted in South Africa for important public policy reasons and in furtherance of constitutionally mandated goals including human rights advancement, and in particular the pursuit of substantive equality and the need to proactively redress the apartheid history of exploitative labour practices, forced land deprivations, and discriminatory ownership policies which previously characterised South Africa s mining sector for decades.. To this end, the applicants profess a desire that international investment treaty obligations are interpreted and applied in such a way that states can pursue affirmative action measures in furtherance of the human right to equality.. Coherence between domestic law and international law urged.. The applicants point to human rights obligations in South Africa s Constitution, as well as in various international human rights treaties, and the need for arbitrators in the Foresti case to take an approach which promotes a harmonious and coherent vision of international law.. The applicants cite the potential for conflicting rulings in the South African courts and in investment treaty arbitration with respect to what constitutes a permissible government regulation under each regime.. In addition, they raise another potential clash with respect to the validity of South Africa s investment treaties:.. The South African Government s domestic constitutional obligations to pursue the progressive realisation of human rights including substantive equality and the right to a healthy environment are clear.. Any award by this Tribunal that  ...   voluntary disclosure request, in which case the request to the tribunal may fall away entirely.. A third request by the petitioners relates to the closed nature of arbitral hearings in ICSID cases.. The petitioners acknowledge that either party to an arbitration may veto a tribunal s move to hold open hearings; as such, the petitioners request that the parties adopt a more open posture toward the conduct of the proceeding.. In particular, they argue that they should be permitted to attend the hearings, and to make oral presentation of their arguments in the case.. Additionally, the petitioners also argue for the virtue of fully public hearings, which would permit other interested outsiders to monitor the proceedings.. Indeed, the petitioners raise the spectre of a brewing backlash to the arbitration claim, and the ameliorative effect which open-hearings might have.. More generally, the applicants also refer to the benefits of distinguishing ICSID proceedings from the secret and non-transparent decision making processes under Apartheid and colonial rule in South Africa.. Separate amicus curiae bid pending in domestic case.. One of the four petitioners in the ICSID matter is also involved in a bid to intervene as amicus curiae in a domestic South African case (Agri SA v.. South Africa) which takes issue with the same legislation at the centre of the ICSID arbitration.. As previously discussed in IAReporter, South African investors are claiming that the Minerals and Petroleum Resources Development Act (MPRDA) has served to expropriate certain mining rights.. ***.. In March of this year, a South African Court dismissed certain preliminary objections to that claim.. The case is now proceeding to a hearing on the merits.. The Centre for Applied Legal Studies (CALS) filed a petition earlier this month, seeking leave to intervene as amicus curiae in the Agri SA matter.. ****.. In their petition in that case, the CALS seek to argue that the MPRDA has not expropriated so-called old order mineral rights.. Rather, they contend that the new South African mining regime was motivated by a fundamental constitutional objective: transformation and the achievement of substantive equality.. If admitted as amicus curiae, CALS submits that it will present arguments derived from various international human rights law instruments which permit the taking of special measures to advance the socio-economic prospects of disadvantaged groups.. Of particular interest, the CALS also adverts in it petition in the Agri SA case to the parallel ICSID arbitration, and expresses a desire to present evidence in the South African courts as to the scope for similar international arbitration claims challenging the MPRDA as well as the possible implications of the outcome of the present matter for such disputes.. Copies of the two petitions are available on the website of occasional IAReporter contributor, Prof.. Andrew Newcombe.. See:.. http://ita.. law.. uvic.. ca/documents/ForestivSAPetition.. pdf.. and.. ca/documents/AgriSAPetitionofCALS.. * The groups are the Legal Resources Centre, The Center for International Environmental Law (CIEL), The International Centre for the Legal Protection of Human Rights (INTERRIGHTS), The Centre for Applied Legal Studies (CALS); While the Editor of IAReporter has no involvement in this matter (and does not become involved in investment treaty arbitrations more generally), he does have a peripheral relationship to one of the organizations which provides funding to one of the would-be amicus curiae.. The Norwegian Human Rights Centre at the University of Oslo provides financial support to the LRC; The Editor of IAReporter has worked in the past with the Norwegian Centre to organize a conference and edited essay collection on the relationship of investment treaties and human rights.. ** Piero Foresti, Laura De Carli Others v.. Republic of South Africa, ICSID Case No.. ARB(AF)/07/01; For past reporting on the ICSID case see our April 2, 2009 issue (.. http://www.. iareporter.. com/Archive/IAR-04-02-09.. )and the October 22, 2008 issue (.. com/Archive/IAR-10-22-08.. ).. *** See the March 17, 2009 edition of IAReporter for more on this case:.. com/Archive/IAR-03-17-09.. **** Another of the 4 organizations involved in the ICSID amicus intervention, the Legal Resources Centre, is acting as legal counsel for the CALS in the Agri SA case.. Related Articles:.. South Africa declines to appeal ruling ordering Gov't to assist farmers; regional tribunal finds Zimbabwe in contempt.. Investment Arbitration Reporter is a specialized news publication tracking developments in the area of international investment law and policy.. The publication does not offer legal or financial advice or recommendations of any kind.. To offer news-tips or comments, email the Editor, Luke Eric Peterson, at:.. editor@iareporter.. com.. Back to top..

    Original link path: /articles/20090722_1
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  • Title: Claimant in garbage disposal dispute with Canada seeks closed-door hearings and wants amicus curiae to pay $25,000 fee - Investment Arbitration Reporter (IAReporter)
    Descriptive info: Claimant in garbage disposal dispute with Canada seeks closed-door hearings and wants amicus curiae to pay $25,000 fee.. Nov 12, 2008.. By Luke Eric Peterson.. Newly-released documents show that a US investor suing the Government of Canada over an alleged expropriation has asked arbitrators to close the hearings to the public, and to reject applications from outside groups seeking to intervene in the NAFTA Chapter 11 arbitration.. In the event that the tribunal accepts amicus curiae submissions, the claimant, Vito G.. Gallo, has asked the tribunal to impose a $25,000 fee on prospective interveners so as to defray some of the additional time and procedural costs arising out of such submissions.. These disclosures come to light following a request by.. for copies of recent documents in the Vito Gallo v.. Canada arbitration.. This request was met with the public release by Canada of a number of documents in early November.. Mr.. Gallo initiated arbitration in March of 2007, alleging that actions taken by the Ontario provincial government amount to an expropriation of his investments in a scheme to use a former open-pit mine as a disposal site for non-hazardous household and commercial waste from the City of Toronto.. In a series of documents exchanged earlier this year, the two parties debated a series of procedural issues.. Ultimately, the tribunal (consisting of Prof.. Juan Fernandez-Armesto (Chair), J.. Christopher Thomas Q.. C.. (Canada s appointee), and Prof.. Jean-Gabriel Castel O.. Q.. (investor s nominee)) issued a pair of orders on June 4, 2008 resolving a number of these procedural issues.. Documents can be disclosed, but open hearings are opposed by investor.. Among the key rulings made by the tribunal is one which orders that all documents submitted to or issued by the tribunal may be released by either party.. Canada had sought disclosure of all such documents, and has pushed for the oral hearings in the case to be open to the public.. In contrast with most governments involved in investment treaty arbitration, Canada, the US and Mexico generally push for release of arbitration documents and pleadings in NAFTA Chapter 11 arbitrations.. Such a policy was adopted following widespread public and media criticism of the confidential nature of legal  ...   the dispute.. The proposal to use the former mine site for waste-disposal has indeed attracted widespread public interest, with some 23,000 public submissions made when Ontario s Ministry of Environment solicited public comments on the project in 2003.. Outsiders can apply to intervene; tribunal silent on $25,000 fee proposal.. In anticipation of potential intervention by non-parties wishing to present legal arguments (as so-called amicus curiae) the two sides also debated the procedures for any such submissions.. While the claimant acknowledged that tribunals in NAFTA Chapter 11 arbitrations have the authority to permit such submissions, Mr.. Gallo s counsel argued that there is no public interest in the present case which would justify amicus curiae interventions.. In the claimant s view, the case does not involve a dispute over regulations of general application; rather in the claimant s view the case pertains to a specific statute, the Adams Mine Lake Act, targeting a particular project.. However, in the event that the tribunal permits amicus curiae interventions, the claimant called for the imposition of a $25,000 fee so as to defray some of the expenses which arise when outside legal briefs must be reviewed and discussed by the parties and the tribunal.. (The Editor of.. is not familiar with any other investor-state arbitrations where such a proposal has been made although it is commonplace for one or both parties to an arbitration to cite concerns about the additional time and cost burdens that may be imposed by amicus curiae interventions).. Ultimately, the tribunal did not address the proposal for an amicus curiae fee in its Orders issued on June 4, 2008.. However, a procedural timetable included in the Procedural Order No.. 1 does contemplate potential amicus curiae submissions.. According to the current timetable, would-be interveners have until Nov.. 16, 2009 to seek leave to file an amicus curiae submission in the case.. Indeed, the Gallo case appears set to play out over the next several years.. The parties will exchange documents over the coming months, followed by an exchange of written briefs in the second half of 2009.. A second exchange of written briefs is slated for the first half of 2010, with oral hearings to be scheduled sometime thereafter..

    Original link path: /articles/20090930_7
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  • Title: Claimant and Canada exchange arguments in claim brought by US citizen for alleged expropriation of waste disposal business - Investment Arbitration Reporter (IAReporter)
    Descriptive info: Claimant and Canada exchange arguments in claim brought by US citizen for alleged expropriation of waste disposal business.. In papers filed in an ongoing arbitration under Chapter 11 of the North American Free Trade Agreement (NAFTA), the Government of Canada is contesting the standing of a US citizen to lodge a claim in relation to a controversial waste-disposal scheme.. Canada insists that a panel of arbitrators convened to hear a claim brought by Pennsylvania resident Vito G.. Gallo on behalf of an Ontario enterprise should decline jurisdiction over the claim because it is effectively brought by Canadians against Canada something that should be impermissible under the NAFTA s Chapter 11.. The argument by Canada comes in a copy of its Statement of Defence filed on September 15, 2008 in the arbitration, but only recently released to the public.. Canada s legal brief the first of several that will be filed in the case - describes in considerable detail the long-running efforts by Canadian owners of a former open-pit iron ore mine to have the site approved for disposal of municipal waste from the city of Toronto, and other municipalities.. According to Canada s account of the investment, the project was a failed business scheme which never attracted the requisite waste contracts, nor the various required approvals from government.. Indeed, Canada pithily observes that the enterprise in question had a hole in the ground and an idea, but little more.. When a new government came to power in October of 2003 in Ontario, it resolved to strengthen environmental controls following public outrage over the deaths of 7 persons in an Ontario municipality from a tainted water scandal.. Premier Dalton McGuinty s provincial government passed legislation which prohibited use of a man-made lake at the so-called Adams Mine site for purposes of waste disposal.. More generally, the Ontario government prohibited  ...   costs arising out changes in the law affecting the project.. ).. The claimant contends that it obtained some key approvals for the project, but that legislation passed by the Province of Ontario in 2004 summarily foreclosed the use the so-called Adams Mine Lake for waste disposal and denied the project owners the ability to challenge this decision in the Canadian courts.. Indeed, among the alleged breaches of NAFTA advanced by Mr.. Gallo is a claim that he has suffered a denial of justice as a result of the above-mentioned legislation s having curtailed access to domestic courts.. However, Canada s Statement of Defence counters that the enterprise owned by Mr.. Gallo had ample opportunity to comment on the draft legislation in question leading to several notable changes.. Moreover, provisions of the legislation provided for compensation for certain losses arising out of the efforts to convert the Adams mine site to a waste-disposal site.. While certain Canadian investors involved in the early stages of the scheme applied for such compensation, Mr.. Gallo instead moved to sue Canada under NAFTA Chapter 11.. In their preliminary filings in the case, the two sides also disagree sharply as to the proper construction of key NAFTA Chapter 11 legal obligations.. Gallo s Statement of Claim accuses Canada of breaching its NAFTA Article 1105 obligation to provide fair and equitable treatment because of the Province of Ontario s failure to respect the investor s expectations that it could rely upon the good faith of the Government of Ontario in respect of the permits that had been issued for operation of the investment.. Canada, in its Statement of Defence, counters that the relevant NAFTA article does not oblige several of the obligations posited by claimants, including to protect the investor s legitimate expectations and to provide for a stable and predictable regulatory and business environment..

    Original link path: /articles/20090930_6
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  • Title: IN-DEPTH: Other treaty breaches, including of Fair and Equitable Treatment standard, upheld in Biwater v. Tanzania - Investment Arbitration Reporter (IAReporter)
    Descriptive info: IN-DEPTH: Other treaty breaches, including of Fair and Equitable Treatment standard, upheld in Biwater v.. Tanzania.. Jul 28, 2008.. (Editor's Note: This is the third of three articles analyzing the award in the Biwater v.. Tanzania case.. For the other articles in this series, see.. here.. The various claims for expropriation.. tabled by Biwater Gauff (Tanzania) Ltd.. in its arbitration with Tanzania were also cited as part of its case for breach of the Fair and Equitable Treatment treaty standard owed by Tanzania.. Additionally, under this heading BGT complained of several other actions, some of which included Tanzania s failure to appoint an independent regulator for the project (relying instead on a political minister); Tanzania s failure to manage public expectations with regard to the speed of improvements to the water network; a failure by state agencies to pay their water bills; and a failure by Tanzania to deal with requests to revise the tariffs charged to customers in light of changing conditions.. The tribunal, referring to the previous analysis under the expropriation section of the award, held that the same actions that constituted an expropriation also breached the Fair and Equitable Treatment standard.. (These included a May 13th public announcement by the Minister; comments made to City Water employees at a subsequent political rally; withdrawal of certain tax exemptions; and the seizing of city Water s offices and deportation of senior management).. The tribunal then proceeded to reject most of the further allegations set forth by BGT as additional breaches of the Fair and Equitable Treatment standard, with once exception Of particular note, many of these additional claims of breach pertained to the period preceding May-June 2005, and the arbitrators sided with Tanzania in finding that the Government had not breached the treaty during the broader life-span of the City Water project.. Indeed, at certain junctures the tribunal noted that certain of BGT s claims were clearly not rooted in legitimate expectations on the part of the investor, for example that it was entitled to a broader review of tariffs than had been provided for in the project contracts, or entitled to a renegotiation of the contract terms.. However, the tribunal did hold that Tanzania had, in the final days of the project, undermined BGT s investment by failing to manage the expectations of the public with regard to the speed of improvements to the network.. BGT had pleaded that it had a legitimate expectation that the Government would at the very least maintain a neutral position and not tarnish City Water s image in the eyes of the public.. Yet, the investor complained that following DAWASA s move to commence termination of the contract in May 2005, the relevant Tanzanian Minister made a series of public announcements which denigrated City Water s poor performance , and announced that a new public entity would be taking over the service.. In defence of this particular claim, Tanzania had retorted that no tribunal had ever held a government in breach of the fair and equitable treatment obligation for negative public statements made about an investor.. However, the tribunal held that at the time of the statements by the Minister in question the contract was still in force - DAWASA had only initiated the termination process at this stage and that City Water still had a right to the proper and unhindered performance of the contractual termination process.. Indeed, the tribunal held that public statements attributable to Tanzania constituted an unwarranted interference in this contractual termination process, and inflamed and polarized public opinion so that the termination process was doomed not to play out according to the contractually-agreed process.. It should also be added that the tribunal also gave some credence to BGT s claim that the failure by Tanzania to appoint an independent regulator to govern the investment was, as a matter of principle, a breach of the Fair  ...   come in for particular scrutiny by tribunal.. A recurring theme throughout the award is the impropriety of a Tanzanian Government Minister s having made certain public comments, which were construed by BGT and the tribunal as excessive, inflammatory, and designed for political gain in the context of the Minister s own plans to run for Prime Minister in forthcoming elections.. Indeed, one debate which the award may engender in future is the extent to which investment treaties place restrictions on the ability of governments in their political role as elected representatives to pronounce upon matters such as the ones in the present dispute.. An initial reading of the award appears to put elected officials on notice that they must tread delicately with respect to their public pronouncements in the context of quarrels over foreign owned investments.. (Of course, the relevance and persuasiveness of this (or any other) arbitral award is always unclear in a context where such decisions do not carry formal precedential weight.. Certain passages in the award in BGT v.. Tanzania are redolent of holdings in another investment treaty arbitration, Eureko v.. Poland, where arbitrators looked skeptically upon political considerations which were said to have motivated the actions of Polish Ministers to reverse an earlier privatization commitment.. *.. Investor s conduct raised by Tanzania and outside NGOs.. In general, the tribunal s approach to the fair and equitable treatment standard is noteworthy in that it took on board arguments by the Tanzanian Government, and a group of nongovernmental organizations, to the effect that the interpretation of the fair and equitable treatment standard should take into account factors such as the investor s own conduct and/or responsibilities.. Tanzania argued that investors could not hold governments responsible for poor investment decisions or unreasonable risks taken.. Indeed, Tanzania cited at several junctures a law review article** by Prof.. Peter Muchlinski which suggests that the fair and equitable treatment standard includes a requirement that investors act rationally in light of the investment context.. The tribunal summarized Tanzania s articulation of this point thusly: (An investor) must assess the extent of the investment risk before entering into the investment, have realistic expectations as to its profitability, and be on notice of both the prospects and pitfalls of an investment undertaken in a high risk location.. Determining what fair and equitable treatment consists of in any particular case requires a proper assessment of investment risk at the outset of the investment process.. In the context of the specific case, the Government submitted that BGT had failed to undertake proper assessments of the risks associated with the project, and that the firm s own judgment and conduct contributed overwhelmingly to City Water s failure.. Prof.. Muchlinski s reading of the fair and equitable treatment standard also influenced a separate legal brief submitted by the aforementioned group of non-governmental organizations.. ***(Disclosure: the Editor of IAReporter was formerly the editor of an arm s length news-reporting service for one of the organizations, the IISD, which intervened in the Biwater case, but he had no responsibility for the amicus curiae bid).. The amicus curiae brief, which the tribunal summarized at length at an early stage in the award deeming it a useful contribution to the proceeding - argued that investors have a series of responsibilities including to act in good faith prior to and during the investment period; to meet their own obligations under investment contracts; and to undertake proper due diligence and assessment of risks before entering into an investment.. * Eureko v.. Poland, Partial Award of August 19, 2005, at para 233.. ** Peter T.. Muchlinski, Caveat Investor? The Relevance of the Conduct of the Investor under the Fair and Equitable Treatment Standard , Vol.. 55, No.. 3, 527-558, 2006.. *** Lawyer s Environmental Action Team, et.. al.. , Amicus Curiae Submission of March 26, 2007, in Biwater Gauff (Tanzania) Ltd.. Republic of Tanzania..

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  • Title: ANALYSIS: As Ecuador is held in breach of order to block enforceability of Lago Agrio judgment, tribunal remains reticent as to why it sees harm to Chevron as irreparable - Investment Arbitration Reporter (IAReporter)
    Descriptive info: ANALYSIS: As Ecuador is held in breach of order to block enforceability of Lago Agrio judgment, tribunal remains reticent as to why it sees harm to Chevron as irreparable.. Feb 11, 2013.. An ad-hoc arbitral tribunal hearing claims by Chevron and Texaco Petroleum against the Republic of Ecuador has held Ecuador liable for failing to suspend the enforceability of a controversial 2011 multi-billion Dollar Ecuadorian court judgment against Chevron.. The tribunal has issued a series of interim measures orders as well as two interim awards - that placed Ecuador (including its courts) under a duty to do what was necessary to stall domestic Ecuadorian proceedings so that the controversial Lago Agrio judgment was not in a final state where it could be taken to other jurisdictions and enforced against Chevron assets.. However, following the certification of the Lago Agrio judgment in mid-2012 and subsequent attempts by the judgment-creditors to enforce the judgment against Chevron assets in Canada, Brazil and Argentina, the two claimants, Chevron and TexPet, asked arbitrators to find that Ecuador had failed to abide by the terms of the tribunal s interim measures rulings.. In an.. Interim Award dated February 7, 2013.. , the tribunal of VV Veeder, Vaughan Lowe and Horacio Grigera Naon sided with the claimants in holding Ecuador to be in violation of two earlier interim awards that set forth key interim measures obligations.. The tribunal has also ordered Ecuador to show cause as to why it should not compensate Chevron for costs arising out of these enforcement proceedings pending in various non-Ecuadorian jurisdictions.. The tribunal also uses its latest interim award to remind Ecuador that it is responsible under the US-Ecuador bilateral investment treaty (and the UNCITRAL arbitration rules) to ensure that the arbitral proceedings are not rendered nugatory by the fact that the Lago Agrio judgment has been permitted to be taken abroad by the judgment-creditors and used to target Chevron assets around the world.. The developments come as.. evidence mounts.. as to the irregular nature of the judgment issued against Chevron in the Lago Agrio proceedings.. However, even as the sentiment of some.. long-time observers.. appears to be shifting in favour of Chevron's direction, questions remain as to the authority of arbitrators to direct the Republic of Ecuador to move to hobble enforcement of the Lago Agrio judgment, as well as the necessity for doing so.. While the tribunal has made clear that it views itself to have such an authority, and that this authority must be deployed so as to save the claimants from irreparable harm, the tribunal has been notably reticient in explaining the basis upon which it reaches these conclusions.. Ecuador s violation of earlier orders, puts spotlight on their terse nature.. Beginning in May of 2010 and carrying through to February of 2012, the tribunal has issued a series of ever-more-specific orders that direct the parties, and in particular Ecuador, to take certain steps designed to maintain the status quo and to avert further harm to the claimants.. For more than two years, Chevron and TexPet have urged the tribunal to find that Ecuador is not complying with these interim measures orders and awards.. The recent finding that Ecuador is, indeed, in violation of those orders, casts a new spotlight on these arbitrator-imposed strictures.. A review of the various interim measures ordered in the arbitration reveals that the tribunal has spent little time agonizing over its authority to order Ecuador to take (or refrain  ...   at length as to need for and limits of interim measures.. The tribunal s tersely-worded interim measures rulings can be contrasted with those issued in certain other investor-state arbitrations.. For instance, in a 2007 decision in the Occidental v.. Ecuador arbitration at ICSID, the relevant tribunal devoted 50 pages to evaluating the parties arguments and exploring the limits of the tribunal s own powers with respect to ordering parties to engage in or refrain from specific conduct.. (In that 2007 decision in the Occidental case, the tribunal nodded to a similarly "long and thoughtful" decision on provisional measures issued in another (earlier) arbitration, Pey Casado v.. Fear that arbitration will become moot also appears to drive tribunal rulings.. One thing that is clear from recent tribunal orders and awards in the Chevron/TexPet case is that the tribunal is anxious that the arbitration process not be rendered irrelevant or moot.. In an excerpt from a November 2012 hearing reprinted in the recent February 2013 Interim Award, the presiding arbitrator, VV Veeder gave voice to this anxiety:.. Can I raise another matter that the Tribunal has discussed; it is that we are very concerned about being overtaken by events.. There is no purpose in a procedure like this, which is complicated, expensive, and difficult for all concerned if at the end of the day the piece of paper that s produced by the Tribunal is completely irrelevant because events have overtaken the Tribunal.. In this context, Mr.. Veeder floated the possibility of the merits hearings in the arbitration being moved forward some 6 months from early 2014 to mid-2013.. The claimants are pushing for this, but the tribunal has yet to announce whether it will do so.. The tribunal is concerned not merely with its proceedings being rendered moot, but also that their very fairness will be undermined by premature enforcement of the Lago Agrio judgment.. As the tribunal notes in its recent fourth Interim Award, such enforcement may imperil to a very significant extent the overall fairness and the efficacy of these arbitration proceedings.. Again, the tribunal does not elaborate as to why the arbitration is in danger of being deprived of its fairness and efficacy, but it is clear that the arbitrators are of the view for whatever reason - that monetary compensation cannot be expected to undo any damage visited upon Chevron and TexPet in the near term.. Indeed, it appears that the tribunal is suggesting that investor-claimants should be able to forestall (at least some types of) measures that may breach investment treaty protections, rather than see those measures taken and have arbitrators limit themselves to a subsequent assessment as to how to repair the harm occasioned to the claimants.. No one should doubt that the tribunal is equal to the task of setting out a fuller accounting of its reasoning; indeed Ecuador's own nominee to the tribunal, Vaughan Lowe, was until recently the holder of the most prestigious chair in international law at Oxford University.. However, while the tribunal bides its time before offering a fuller explication - perhaps in its final award on the merits - its actions appear likely to inspire other claimants to test whether arbitrators are prepared to play a more prophylactic role in contexts where investors are at risk of suffering different forms of treaty-violation.. * See for instance the recent bid by a Dutch company to avert an expropriation of its assets in the Slovak Republic:.. com/articles/20130208_1..

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  • Title: ANALYSIS: Umbrella clause and fair and equitable treatment claims founder in Unglaube v. Costa Rica eco-tourism case due to inability to show that state had made key promises - Investment Arbitration Reporter (IAReporter)
    Descriptive info: ANALYSIS: Umbrella clause and fair and equitable treatment claims founder in Unglaube v.. Costa Rica eco-tourism case due to inability to show that state had made key promises.. Jul 9, 2012.. Can't view this article? If you are a subscriber, and we have your IP addresses on file,  ...   top-left corner of this page.. This will ensure you are "recognized".. If you are a subscriber, and you use a log-in ID and password for the site, please click.. If you are NOT a subscriber, why not join today? Learn more about.. subscriber benefits.. Click here to join..

    Original link path: /articles/20120710_3
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  • Title: Investment Arbitration Reporter (IAReporter)
    Descriptive info: Recent Articles in Environmental Disputes.. European Court of Human Rights rules on claims by landowners for excessively delayed expropriation payouts in Malta and Poland.. Dec 31, 2011.. Swedish energy company reportedly planning new ICSID arbitration over German nuclear phase-out.. Nov 2, 2011.. Turkey must compensate land-owners affected by its land conservation policies; compensation calculated near time of judgment, not the date of interference.. Oct 12, 2011.. Investor in waste management project in Mexico puts government on notice of treaty breaches.. Sep 7, 2011.. Renewable energy arbitration claims on horizon, but states take differing approaches to public disclosure.. ICSID panelists named in annulment cases involving El Salvador and Egypt, and in arbitration arising out of Niger airport services dispute.. Aug 19, 2011.. Mining arbitration between foreign investor and government takes an unusual turn, as a defence counsel steps into role of witness.. Jun 30, 2011.. Award embodying settlement of contentious coal-fired power plant dispute in Germany is published; Russia-Moldova investment arbitration award and arbitrator challenge ruling in OPIC Karimum v.. Venezuela case also available online.. Jun 9, 2011.. Dispute over pesticide phase-out ends ambiguously, with investor abandoning case, measures remaining in place, but Canadian province offering statement which may be brandished in other jurisdictions.. A discussion of the Chevron-Ecuador dispute with Michael Goldhaber of the American Lawyer magazine.. May 17, 2011.. As Peruvian citizens sue U.. mining investors for environmental harms, mining company makes good on threat of treaty arbitration in effort to indemnify against potential losses.. ANALYSIS: Renco’s treaty claims against Peru include indemnification and non-monetary relief requests that echo Chevron v Ecuador case; claim also has contentious jurisdictional and political angles.. Tribunal rules that mining company failed to waive local court proceedings, thus precluding CAFTA arbitration against El Salvador; hearings in a parallel case loom.. Mar 15, 2011.. Bulgaria sued over cancelled waste contract.. Feb 1, 2011.. Tribunal declines interim measures request of investor; claimant pursuing arbitration arising out of Kyoto Protocol emission reduction project.. Oct 20, 2010.. Arbitrators in Chemtura v.. Canada NAFTA arbitration take economical route in finding no treaty breaches.. Sep 15, 2010.. Arbitrators nix bid to hold Canadian government liable for treaty breaches due to phase-out of toxic chemical.. Aug 28, 2010.. ICSID Docket Round-Up: New Claim against Venezuela; Tribunals appointed in Mexico and Grenada cases; Cases against Yemen and Romania are discontinued.. Parties announce settlement of dispute over German power plant.. Water extraction claim dries up in absence  ...   crisis concerns.. Oct 14, 2009.. Advisory Committee Report offers some consensus, but many divergences, as to future of US model investment treaty.. Chevron brings second treaty claim against Ecuador; new twist in multi-Billion Dollar environmental dispute.. Sep 24, 2009.. Shareholders in shuttered battery recycling plant put El Salvador on notice of claims for treaty breach.. Sep 19, 2009.. Second mining claim against El Salvador registered at ICSID; Domestic litigation still ongoing in El Salvador.. ANALYSIS: Slow Gov't decision-making, on environment & approvals, a breach of treaty obligations to foreign investors?.. Canada sets out arguments in NAFTA claim arising out of environmental assessment of quarry and shipping project.. Will gold mine at centre of failed NAFTA expropriation claim have profitable future?.. Aug 6, 2009.. ANALYSIS: Glamis case hinges on definition of minimum standard; award likely to fuel debate in pending NAFTA cases.. German media reveal details of Vattenfall claim v.. Germany; NGOs raise enviro fears as two arbitrators named.. Jul 17, 2009.. United States Government prevails in Glamis Gold arbitration under NAFTA.. Jun 9, 2009.. NAFTA quarrying and shipping claim against Canada will be open to the public.. May 27, 2009.. Tribunal constituted to hear water extraction dispute between German investor and Czech Republic.. CAFTA Claim: mining corp moves to arbitration with El Salvador; enviro impact of project is hotly contested.. May 11, 2009.. Tribunal selected to hear NAFTA claim between Canada and US investors in proposed quarrying and shipping scheme.. Feb 10, 2009.. ANALYSIS: Canada and US chemical company debate whether ban on Lindane amounts to expropriation or other treaty breach.. Jan 22, 2009.. Canada files first written defence in NAFTA dispute over phase-out of hazardous agro-chemical Lindane.. US subsidiary of Canadian miner files CAFTA Notice of Intent against El Salvador; Pacific Rim complains of enviro delays.. Dec 11, 2008.. ANALYSIS: Stricter Chemicals Regulations by Canada Attract NAFTA Lawsuits.. Oct 22, 2008.. Dow Chemicals puts Canada on notice of arbitration over lawn pesticides ban; unrelated claim also threatened in relation to fishing lodge.. Merits claims in Plama v.. Bulgaria fail; investor complained of environmental and tax liabilities, and worker “riots”.. Sep 17, 2008.. Remaining arbitrators in EDF v.. Argentina case reject challenge to Prof.. Gabrielle Kaufmann-Kohler; jurisdiction then upheld.. Aug 7, 2008.. U.. investors launch NAFTA claim against Canada over conduct of environmental assessment of quarry project.. Schedule set for chemical company’s case against Canada; hearings to be closed to public.. Jun 3, 2008..

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  • Title: New Books, Articles and Materials on International Investment Law, June 2012 to November 2012 - Investment Arbitration Reporter (IAReporter)
    Descriptive info: New Books, Articles and Materials on International Investment Law, June 2012 to November 2012.. Nov 26, 2012.. By Prof.. Andrew Newcombe and Cassandra Paterson, Faculty of Law, University of Victoria.. Books:.. D.. Bilchitz S.. Deva,.. Human Rights Obligations of Business: Beyond The Corporate Responsibility To Respect?.. (Cambridge University Press, forthcoming 2013).. R.. Doak Bishop Silvia M.. Marchili,.. Annulment under the ICSID Convention.. (Oxford University Press, forthcoming March 2013).. Andrea K.. Bjorklund August Reinisch, eds.. , International Investment Law and Soft Law.. (Edward Elgar Publishers, 2012).. Gary Born.. , International Arbitration: Law And Practice.. (Kluwer Law International, November 2012).. Chester Brown Devashish Krishan, eds.. ,.. Commentaries on Selected Model Investment Treaties.. (Oxford University Press, forthcoming April 2013).. Armand De Mestral Céline Lévesque, eds.. Improving International Investment Agreements.. (Routledge, forthcoming January 2013).. Surya Deva,.. Regulating Corporate Human Rights Violations: Humanizing Business.. (Routledge, 2012).. Rudolf Dolzer Christoph Schreuer,.. Principles of International Investment Law.. , 2dn ed (Oxford University Press, 2012).. Hege Elisabeth Kjos,.. Applicable Law in Investor-State Arbitration: The Interplay Between National and International Law.. (Oxford University Press, forthcoming February 2013).. Sophie Nappert,.. Commentary on the UNCITRAL Arbitration Rules 2010: A Practitioner's Guide.. (Juris, June 2012).. Karl Sauvant,.. Yearbook on International Investment Law and Policy 2011-2012.. Leon Trakman Nicola Ranieri,.. Regionalism in International Investment Law.. Valentina Sara Vadi,.. Public Health in International Investment Law and Arbitration.. (Routledge, July 2012).. Book Chapters:.. Freya Baetens, "Enforcement of Arbitral Awards: 'To ICSID or Not to ICSID' is Not the Question" Todd Weiler, Ian Laird, eds.. The Future of ICSID, Juris Arbitration Series.. (forthcoming 2013), online: (2011) SSRN.. (Click here for online version).. Patrick Dumberry, "International Investment Contracts", in: T.. Gazzini E.. de Brabandere (eds.. ),.. International Investment Law.. The Sources of Rights and Obligations,.. Martinus Nijhoff, (2012) p.. 215-243.. Patrick Dumberry, "Moral Damages", in: M.. Bungenberg, J.. Griebel, S.. Hobe A.. Reinisch (eds.. , Nomos (2012).. Patrick Dumberry, "Corporate Investors' International Legal Personality and their Accountability for Human Rights Violations under Investment Treaties", in: A.. De Mestral C.. Lévesque (eds.. , Londres, Routledge (2012).. Patrick Dumberry and Gabrielle Dumas-Aubin, "How to Impose Human Rights Obligations on Corporations under Investment Treaties? ", 4.. Yearbook on International Investment Law and Policy.. , 2011-2012, p.. 569-600.. Tarcisio Gazzini, "Bilateral Investment Treaties".. International Investment Law: The Sources Of Rights And Obligation.. s (forthcoming), online: (March 2012) SSRN.. Yaraslau Kryvoi, "Bribery and Russia-Related Arbitration" Yaraslau Kryvoi,.. Bribery and Russia-Related Arbitration in Arbitration In Cis Countries.. (Association for International Arbitration ed.. , 2012), online: (July 2012) SSRN.. Nikos Lavranos, "Member States' Bilateral Investment Treaties (BITs): Lost in Transition?".. Hague Yearbook of International Law 2011.. , pp.. 281-311, online: (October 2012) SSRN.. Julie Maupin, "Transparency in International Investment Law: The Good, the Bad, and the Murky" in.. Transparency in International Law',.. Andrea Bianchi and Anne Peters (eds.. ) (Cambridge University Press, forthcoming 2013), online: (May 2012) SSRN.. Rahim Moloo Justin M.. Jacinto, "Standards of Review and Reviewing Standards: Public Interest Regulation in International Investment Law".. Yearbook of International Investment Law and Policy.. (Oxford University Press, 2012), online: (April 2012) SSRN.. Joost Pauwelyn, "Different Means, Same End: The Contribution of Trade and Investment Treaties to Anti-Corruption Policy" Susan Rose-Ackerman (ed.. Anti-Corruption Policy: Can International Actors Play a Constructive Role?.. (Carolina Academic Press, forthcoming 2013), online: (September 2012) SSRN.. Lauge Skovgaard Poulsen, "Investment Treaties and the Globalisation of State Capitalism: Opportunities and Constraints for Host States" Forthcoming in: R.. Echandi and P.. Sauvé (eds.. Prospects in International Investment Law and Policy.. (Cambridge: Cambridge University Press, 2012), online: (May 2012) SSRN.. Vid Prislan, "Non-Investment Obligations in Investment Treaty Arbitration - Towards a Greater Role for States?" F.. Baetens (ed.. ),.. Investment Law Within International Law: An Integrationist Perspective, Cambridge.. (Cambridge University Press, forthcoming 2013), online: (2012) SSRN.. Christian J.. Tams, "The Sources of International Investment Law".. International Investment Law: The Sources of Rights and Obligations,.. Gazzini, De Brabandere, eds.. , (Brill, 2012), online: (June 2012) SSRN.. Jorge Vinuales, "The Environment Breaks into Investment Disputes" in M.. Hobe, A.. , Reinisch (eds),.. (forthcoming 2012), online: (2012) SSRN.. Jorge Vinuales Pierre-Marie Dupuy, "Human Rights and Investment Disciplines: Integration in Progress" in M.. , Reinisch (eds.. (forthcoming 2012).. Book/Article Reviews:.. Susan Franck, "Book Review: The Public International Law Regime Governing International Investment, by Jose E.. Alvarez, The Hague: Hague Academy of International Law, 2011, Pp.. 502".. American Journal of International Law, 2012 Washington Lee Legal Studies Paper No.. 2012-34, online: (October 2012) SSRN.. Oleksiy Kononov, "Karl P.. Sauvant, Yearbook on International Investment Law Policy 2009-2010: Book Review" Czech Yearbook of International Law 2012: Public Policy and Ordre Public, pp.. 239-243, online: (May 2012) SSRN.. Valentina Vadi, "Book review: Reviewing International Investment Law and Comparative Public Law, edited by Stephan W.. Schill", 15 J.. Int'l Econ.. Law 917-920 (2012).. Reports:.. International Bar Association, "Rules for Investor-State Mediation", online: (October 2012) (.. Click here for online version.. ICC Commission Report, "States, State Entities and ICC Arbitration" (2012), (.. ICSID, Background Report on Annulment For the Administrative Council of ICSID, 10 August 2012 (.. Committee on International Commercial Disputes of the New York City Bar Association, Recommended Procedures for Recognition and Enforcement of International Arbitration Awards Rendered under the ICSID Convention, July 2012 (.. Click here for online edition.. ).. Recently Published Articles:.. Karen Alter, "The Multiple Roles of International Courts and Tribunals: Enforcement, Dispute Settlement, Constitutional and Administrative Review" Northwestern Law Econ Research Paper No.. 12-10, online: (July 2012) SSRN.. Daniel Augenstein David Kinley, "When Human Rights Responsibilities' become Duties': The Extra-Territorial Obligations of States that Bind Corporations" Sydney Law School Research Paper No.. 12/71, online: (September 2012) SSRN.. Larry Catá Backer, "Transnational Corporate Constitutionalism: The Emergence of a Constitutional Order for Economic Enterprises", online: (April 2012) SSRN.. Eirik Bjorge, "Evolutionary Interpretation and the Intention of the Parties" University of Oslo Faculty of Law Research Paper No.. 2012-33, online: (October 2012) SSRN.. Roger Lloret Blackburn, "Repsol v Argentine YPF", online: (April 2012) SSRN.. Nicolas Boeglin, "Equateur/CIRDI : Une nouvelle fronde avec de probables répercussions regionals" Droit international économique,.. Jonathan Bonnitcha, "The UN Guiding Principles on Business and Human Rights: The Implications for Enterprises and their Lawyers" Business and Human Rights Review, No.. 1, pp.. 14, 2012, online: (October 2012) SSRN.. Anatole Boute, "Combating climate change through investment arbitration" 35 Fordham Int'l L.. J.. 613-664 (2012).. Eric de Brabandere Julia Veronika Lepeltak, "Third Party Funding in International Investment Arbitration" Grotius Centre Working Paper No.. 2012/1, online: (June 2012) SSRN.. Micah Burch, Luke Nottage Brett Williams, "Appropriate Treaty-Based Dispute Resolution for Asia-Pacific Commerce in the 21st Century" Sydney Law School Research Paper No.. 12/37, online: (May 2012) SSRN.. Tsai-Fang Chen, "The Standard of Review and the Roles of ICSID Arbitral Tribunals In Investor-State Dispute Settlement" Contemporary Asia Arbitration Journal, Vol.. 1, pp.. 23-43, online: (May 2012) SSRN.. David Collins, "Alternative Dispute Resolution for Stakeholders in International Investment Law" Journal of International Economic Law 2012 15: 673-700.. Simone Collins, "Recent Decisions Under The Investment Canada Act: Is Canada Changing Its Stance On Foreign Direct Investment?" 32 Northwestern Journal of International Law and Business 141, Fall 2011..  ...   Development" online: (November 2012) SSRN.. Sergio Puig, "Investor-State Tribunals and Constitutional Courts: The Mexican Sweeteners Saga" Mexican Law Review (forthcoming), online: (January 2012) SSRN.. Sergio Puig, "Recasting ICSID's Legitimacy Debate: Towards a Goal-Based Empirical Agenda" Fordham International Law Journal, Vol.. 36, 2012 (forthcoming), online: (September 2012) SSRN.. Sergio Puig Chester W.. Brown, "The Secretary-General's Power to Refuse to Register a Request for Arbitration Under the ICSID Convention" ICSID Review-Foreign Investment Law Journal (forthcoming), online: (March 2012) SSRN.. Graham Ravdin, "One step forward, two steps back: arguing for a transatlantic investor protection regime" 50 Columbia Journal of Transnational Law 490, (2012).. Michael Runnels Adam Burton, "The Foreign Corrupt Practices Act and new governance: incentivizing ethical foreign direct investment in China and other emerging economies" 34 Cardozo Law Review 295-328 (October 2012).. Mavluda Sattorova, "Defining Investment Under the ICSID Convention and Bits: Of Ordinary Meaning, Telos, and Beyond" Asian Journal of International Law, April 2012.. Mavluda Sattorova, "Elasticity, Overlap, and Duplication of Investment Protection Guarantees: The Widening Scope of Private Ordering in International Investment Law", November 2012.. Mavluda Sattorova, "International Investment Law and Renewable Energy: Enabling National Policy-Making?" June 2012.. Mavluda Sattorova, "Return to the Local Remedies Rule in European BITs?: Power (Inequalities), Dispute Settlement, and Change in Investment Treaty Law" Legal Issues of Economic Integration, Vol.. 39, No.. 2, pp.. 223-247, 2012, online: (May 2012) SSRN.. Sara L Seck, "Canadian Mining Internationally and the UN Guiding Principles on Business and Human Rights" (2011) 49 Canadian Yearbook of International Law (forthcoming).. S.. Strong, "Mass Procedures in Abaclat v.. Argentine Republic: Are They Consistent with the International Investment Regime?" 3 Yearbook on International Arbitration (forthcoming), online: (June 2012) SSRN.. I.. Strong, "Mass Torts and Arbitration: Lessons from Abaclat v.. Argentine Republic" University of Missouri School of Law Legal Studies Research Paper No.. 2012-15.. Seyed Mohammad Tabatabaei Nejad, "Public-Private Distinction and the Dilemma of Mandatory Laws: An ICSID Perspective" online: (April 2012) SSRN.. Irene Ten Cate, "The Costs of Consistency: Precedent in Investment Treaty Arbitration" Columbia Journal of Transnational Law 2013, online: (September 2012) SSRN.. Jordan Toone, "Foreign Direct Investment in Iraq: Reassessing the Legal Framework" BYU International Law Management Review (forthcoming), online: (September 2012) SSRN.. Leon Trakman, "China and Investor-State Arbitration" in UNSW Law Research Paper No.. 2012-48 online: (October 2012) SSRN (.. Click here for online version).. Leon Trakman, "Resolving Investor-State Disputes Under a Transpacific Partnership Agreement - What Lies Ahead?" UNSW Law Research Paper No.. 2012-46, online: (September 2012) SSRN.. Valentina Sara Vadi, "Global Health Governance at a Crossroads: Trademark Protection v.. Tobacco Control in International Investment Law" Stanford Journal of International Law, Vol.. 48, No.. 1, p.. 93, (March 2012).. Valentina Sara Vadi, "Overlapping Regulatory Spaces: The Architecture of Chapter 11 of NAFTA and the Regulation of Toxic Chemicals" 4 European Journal of Risk Regulation (2011) 586-590, online: (September 2011) SSRN.. Valentina Sara Vadi, "The Protection of Cultural Landscapes and Indigenous Heritage in International Investment Law" Human Health Ecological Integrity - Ethics, Law And Human Rights 2012.. Valentina Sara Vadi, "Through the Looking-Glass: International Investment Law through the Lens of a Property Theory" Manchester Journal of International Economic Law, Vol.. 8, No.. 3, p.. 22, 2011, online: (2011) SSRN.. Gus Van Harten, "Arbitrator Behaviour in Asymmetrical Adjudication: An Empirical Study of Investment Treaty Arbitration" Osgoode Hall Law Journal, online: (April 2012) SSRN.. Gus Van Harten, "Summary of G.. Van Harten, 'The Use of Quantitative Methods to Examine Possible Bias in Investment Arbitration' and 'Reply' [to Franck, Garbin, and Perkins] in the Yearbook on International Investment Law Policy (2011)", online: (2011) SSRN.. Peng Wang, "Challenge and Disqualification of Arbitrators Under ICSID: A Case Analysis" online: (July 2012) SSRN.. Nancy Welsh, "Becoming 'Investor-State Mediation'" Penn State Journal of Law International Affairs, Vol.. 1, No.. 1, 2012, online: (April 2012) SSRN.. Lutz-Christian Wolff, "Chinese investments overseas: onshore rules and offshore risks" 45 Int'l Law.. 1029-1049 (2011).. Jan Wouters, Sanderijn Duquet, Nicolas Hachez, "International Investment Law: The Perpetual Search for Consensus", online: (March 2012) SSRN (.. Jason Yackee, "Controlling the International Investment Law Agency" Harvard International Law Journal, Vol.. 53, No.. 2, online: (July 2012) SSRN.. Jason Yackee, "Investment treaties investor corruption: an emerging defense for host states" 52 Va.. Papers Presented at 3rd Biennial SIEL Conference:.. Jonathan Bonnitcha, "Investment Treaties and Democratic Transition" Society of International Economic Law (SIEL), 3rd Biennial Global Conference, online: (July 2012) SSRN.. Eric de Brabandere, "Co-Existence, Complementarity or Conflict? Interaction between Preferential Trade and Investment Agreements and Bilateral Investment Treaties" Preferential Trade and Investment Agreements: A New Ordering Paradigm for International Investment Relations?" Goethe-Universität, Frankfurt am Main, March 16-17, 2012, online: (March 2012) SSRN.. Julien Chaisse, "Trans-Pacific Partnership Negotiations on Investment Issues and Challenges" Society of International Economic Law (SIEL), 3rd Biennial Global Conference, online: (July 2012) SSRN.. Jean-Pierre Chauffour, "The Challenge of Implementing Preferential Trade Agreements in Developing Countries - Lessons for Rule Design" Society of International Economic Law (SIEL), 3rd Biennial Global Conference, online: (July 2012) SSRN.. (Click here online version).. Diane Desierto, "Human Rights and Investment in Economic Emergencies: Conflict of Treaties, Interpretation, Valuation Decisions" Society of International Economic Law (SIEL), 3rd Biennial Global Conference SIEL Working Paper No.. 2012/47, online: (July 2012) SSRN.. Margaret B.. Devaney, "Leave it to the Valuation Experts?: The Remedies Stage of Investment Treaty Arbitration and the Balancing of Public and Private Interests" Society of International Economic Law (SIEL), 3rd Biennial Global Conference, WP No.. 2012-06, July 2012, online: (June 2012) SSRN.. Christian Häberli, "Foreign Direct Investment in Agriculture: Land Grab or Food Security Improvement?" Society of International Economic Law (SIEL), 3rd Biennial Global Conference, online: (June 2012) SSRN.. Caroline Henckels, "Proportionality and the Standard of Review in Fair and Equitable Treatment Claims: Balancing Stability and Consistency with the Public Interest" Society of International Economic Law (SIEL), 3rd Biennial Global Conference, online: (June 2012) SSRN.. Pasha Hsieh, "APEC as a Trans-Regional Economic Governance Architecture: A Critical Assessment with Reform Proposals" Society of International Economic Law (SIEL), 3rd Biennial Global Conference, online: (July 2012) SSRN.. Locknie Hsu, "Public Health Regulation: The Impact of Intersections between Trade Investment Treaties in Asia" Society of International Economic Law (SIEL), 3rd Biennial Global Conference, online: (June 2012) SSRN.. Daniel Kalderimis, "Systemic Integration and International Investment Law - Some Practical Reflections" Society of International Economic Law (SIEL), 3rd Biennial Global Conference Working Paper No.. 2012/46, online: (July 2012) SSRN.. Emmanuel Laryea, "Does the Emerging Global Regime for International Investment Undermine Domestic Capital Formation in Developing Countries?" Society of International Economic Law (SIEL), 3rd Biennial Global Conference, online: (July 2012) SSRN.. Stephan Schill, "Deference in Investment Treaty Arbitration: Re-Conceptualizing the Standard of Review Through Comparative Public Law" Society of International Economic Law (SIEL), 3rd Biennial Global Conference, online: (June 2012) SSRN.. Fiona Smith Christian Häberli, "Food Security, Foreign Direct Investment and Multilevel Governance in Weak States" Society of International Economic Law (SIEL), 3rd Biennial Global Conference, online: (June 2012) SSRN.. Valentina Sara Vadi, "Culture Clash: Investor's Rights v.. Cultural Heritage in International Investment Law Arbitration" Society of International Economic Law (SIEL), 3rd Biennial Global Conference, online: (June 2012) SSRN..

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  • Title: Ecuador bristles at suggestion that its treatment of the media is in breach of international investment treaty and human rights protections - Investment Arbitration Reporter (IAReporter)
    Descriptive info: Ecuador bristles at suggestion that its treatment of the media is in breach of international investment treaty and human rights protections.. Dec 15, 2011..

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  • Title: Southern African governments move to rein in international tribunal; passing judgment on Zimbabwe has led to political backlash against SADC tribunal - Investment Arbitration Reporter (IAReporter)
    Descriptive info: Southern African governments move to rein in international tribunal; passing judgment on Zimbabwe has led to political backlash against SADC tribunal.. May 22, 2011.. At a just-concluded Summit in Namibia, heads of state from the Southern African Development Community (SADC) have moved to bar the region s dispute resolution body from hearing new claims against SADC states.. A copy of the meeting s final communique seen by.. shows that the governments have set in motion a process of amending the legal instruments that empower the tribunal to hear claims from individuals in the region.. The heads of state have also taken a decision that judges whose terms expire will not be re-nominated or replaced.. The decision appears likely to hobble the tribunal, which has struggled to achieve a quorum of judges in recent months following the expiration of the appointments of certain judges.. Even if the tribunal were to achieve quorum, SADC leaders have further decreed that the tribunal should not take any new cases, or hear existing ones, until the legal instrument undergirding the tribunal is reviewed and approved.. The developments signal a major diplomatic victory for Zimbabwe, which has sought to neuter the tribunal ever since the Namibia-based court ruled in 2008 that Zimbabwe had breached its SADC treaty obligations as a result of its policy of violent land  ...   and foreign investment.. Two sources close to the process tell.. that the broad thrust of the consultant s key recommendations were.. rejected at a preparatory closed-door meeting of regional justice ministers held last month.. However, political events have since taken an abrupt u-turn, with SADC heads of state deciding this month to bar the regional tribunal from further work.. Nicole Fritz, head of the Southern African Litigation Center, a non-governmental organization that has advocated for the tribunal in recent months, tells.. IAReporter.. that the outcome of the SADC Summit is a "major set-back".. :.. "The SADC Summit completely capitulated to Zimbabwe, further suspending the Tribunal until at least August 2012.. That they would so act is almost unthinkable given that they had commissioned an independent review.. which is clear that the Tribunal is lawfully established, that it requires no amendment and which recommended that judges be appointed with immediate effect so that the Tribunal might resume operations.. ".. It now remains to be seen whether the SADC governments amend the relevant legal instruments so that only states rather than individuals - are permitted to bring claims in future before the regional tribunal.. will offer further reporting in the coming days.. * For background on the Campbell v.. Zimbabwe case, see:.. com/articles/20090929_26.. ** See our recent report on the review process:.. com/articles/20110513_2..

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  • Title: European Human Rights Court dismisses claims against Turkey in Uzan electricity dispute - Investment Arbitration Reporter (IAReporter)
    Descriptive info: European Human Rights Court dismisses claims against Turkey in Uzan electricity dispute.. May 3, 2011.. By Jarrod Hepburn.. In the latest chapter of a long-running battle between Turkey and the powerful Uzan business empire, the European Court of Human Rights has rejected claims by Kemal Uzan and two of his companies for a reported $165 Billion as compensation for the alleged expropriation of electricity interests.. The Strasbourg-based Court held that a Turkish law, which led to the termination of a long-term concession and the transfer to the state of electricity infrastructure operated by the Uzan group, did not infringe the claimants property rights because it came after repeated contractual violations by the Uzans and multiple warnings from the government.. As discussed below, the Court s ruling of 29 March 2011 found it unnecessary to decide Turkey s claim that the case was inadmissible because the same dispute had already been heard by ICSID tribunals.. Multiplicity of Uzan claims against Turkey, but arguments on parallel proceedings side-stepped by Strasbourg Court.. The current case,* brought under the right to property in Article 1 of Protocol 1 to the European Convention on Human Rights (ECHR), was one of several lines of attack launched by the Uzan group following the asset seizure and contract termination in 2003.. In two 2009 ICSID awards, Cementownia Nowa Huta SA v Turkey and Europe Cement Investment and Trade SA v Turkey, tribunals declined jurisdiction over claims by Polish companies purporting to own shares in the two Uzan electricity companies that held the long-term concession, Çukurova Elektrik AŞ (CEAS) and Kepez Eletrik TAŞ (Kepez).. A third ICSID case, Libananco Holding Co Ltd v Turkey, remains pending.. The Cypriot claimant in that matter has sought to distance itself from the Cementownia and Europe Cement cases.. This multiplicity of proceedings was seized upon by the government before the Strasbourg Court.. Under the ECHR, the Court is empowered to dismiss a claim that has already been submitted to another procedure of international investigation or settlement.. For their  ...   s successive failures to meet its contractual obligations.. These included the failure to make necessary investments leading to insufficient electricity production, failure to apply the agreed tariffs, and the listing of certain state-owned electricity infrastructure on the public register in the Uzan companies own names.. In its assessment, the Court found no arbitrariness in these domestic rulings, with all due process being accorded to the claimants.. The Court added that the claimants, sophisticated business operators with legal advisors, must have known about the new law and its impending effects on their concession contract.. In total, this meant that the taking met the ECHR s legality requirement.. The public interest criterion was also found satisfied, because the domestic law at issue had the objective of improving the domestic electricity market by liberalising it and opening it to competition.. The Court noted that this objective had been adopted following recommendations of the World Bank and the IMF, and with a view to harmonising Turkish law with EU law.. Finally, the Court saw no violation of the fair balance test in Turkey s cancelling of the contracts, in light of persistent non-compliance by the claimants and multiple warnings from the relevant Ministry.. In addition, the contract itself provided that no compensation would be paid in case of termination for fault; thus, the claimants should not have expected any payout.. The Court rejected an argument from the Uzan group that they were not given sufficient time to remedy breaches before the contract was terminated.. In the Court s view, the period of more than 2 years between the law s commencement and the eventual contract termination was sufficient.. Because of these weaknesses in the Uzan claim, the Court instead of rejecting the claim ruled that it was manifestly ill-founded and therefore inadmissible.. As in the ICSID cases, Turkey was represented before the ECHR by lawyers at Freshfields Bruckhaus Deringer.. Strasbourg-based lawyer Vincent Delattre represented the Uzan group.. * Kemal Uzan and others v Turkey (Application No.. 18240/03), 29 March 2011..

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