BCDR International Arbitration Review最新文献

{"title":"Adverse Inferences: A Proposed Methodology in the Light of Investment Arbitrations Involving Middle Eastern States","authors":"Tatiana E. Sainati, Ariff Ali","doi":"10.54648/bcdr2016030","DOIUrl":"https://doi.org/10.54648/bcdr2016030","url":null,"abstract":"In international investor-state arbitration—as in domestic litigation—adverse inferences can play a critical role in promoting compliance with evidence production requests and in establishing truth. Nevertheless, arbitral tribunals have proved hesitant to resort to adverse inferences, particularly when asked to draw such inferences against sovereign states, and the use of adverse inferences remains beset by ambiguity and uncertainty. This article addresses the use of adverse inferences by arbitral tribunals in the context of arbitrations involving state parties and concerning the Middle East. A survey of these cases indicates that the lack of clarity surrounding the use of adverse inferences arises in part because tribunals do not always provide reasons for drawing (or refusing to draw) adverse inferences, have been inconsistent in applying and using them, and generally prefer direct evidence over inferential reasoning. A more methodical approach to requests for adverse inferences could mitigate these inconsistencies and ambiguities, promote greater transparency and predictability, and ensure a balanced and fair application of the device in investor-state disputes. We propose a framework for applying adverse inferences, drawing on their logical and legal underpinnings, the work of international arbitration scholars, and the jurisprudence of arbitral tribunals. By using this framework, tribunals can apply adverse inferences in a more coherent and consistent manner, thereby providing greater certainty to parties, promoting compliance with evidence production requests, and contributing to the uniform development of an international lex evidentia.","PeriodicalId":166341,"journal":{"name":"BCDR International Arbitration Review","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133239520","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Middle Eastern Investors as Claimants in Investment Treaty Arbitrations","authors":"A. Hoffmann","doi":"10.54648/bcdr2016035","DOIUrl":"https://doi.org/10.54648/bcdr2016035","url":null,"abstract":"Investment arbitration is not unknown in the Middle East and North Africa (MENA). An increasingly broad network of bilateral investment treaties (BITs) covers this region, allowing investors to avail themselves of the standards of protection the BITs offer. Middle Eastern states do not share the weariness with BITs and investor-state arbitration that is found in other parts of the world, and continue to conclude new investment treaties. These treaties have been used for more than a decade by Middle Eastern investors to commence investment arbitrations. Initially, the respondent states were often also from this region. However, as investments expand, states in other parts of the world are now also facing claims by investors from the MENA region. The jurisprudence emerging from these cases touches on several interesting legal issues, such as dual nationals as investors and claims for moral damages. The continuing expansion of the BIT network across the region and a growing awareness among investors of the opportunities it offers will likely result in more claims being brought in the future.","PeriodicalId":166341,"journal":{"name":"BCDR International Arbitration Review","volume":"47 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133924924","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Investment Claims Amid Civil Unrest: Questions of Attribution and Responsibility","authors":"Meriam Al-Rashid, Ulyana Bardyn, Levon Golendukhin","doi":"10.54648/bcdr2016025","DOIUrl":"https://doi.org/10.54648/bcdr2016025","url":null,"abstract":"Political instability and civil strife are known inhibitors of foreign investment. The Middle East is a region with tremendous investment potential due to a constellation of factors, including abundant natural resources, convenient geographical location, and an increasingly educated population. However, the instability reverberating through the region since the inception of the Arab Spring has amplified the risks associated with that potential. This article explores international law protections that may be available to foreign investors and host states in the context of civil unrest. It sets out an analytical framework for the issues of attribution and responsibility in this context. Addressing first the issue of attribution (i.e. whether the host state may bear responsibility for unrest-related damage caused by third parties), the article surveys historical cases addressing revolution-related claims against Mexico, Venezuela, Costa Rica, and the United States, with a view to defining the circumstances under which attribution can exist. Turning to the issue of responsibility, the article analyzes both the claims potentially available to investors and the defenses potentially available to host states. The article demonstrates that while international law continues to apply amid political volatility, additional considerations come into play. Therefore, for foreign investors and host states alike, careful planning and tailored legal advice can help considerably towards understanding the risks and managing expectations with regard to a particular investment opportunity.","PeriodicalId":166341,"journal":{"name":"BCDR International Arbitration Review","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134336817","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Combating Norm and Forum Shopping in Investment Arbitration","authors":"M. Shelbaya, Dimitrios Katsikis","doi":"10.54648/bcdr2016029","DOIUrl":"https://doi.org/10.54648/bcdr2016029","url":null,"abstract":"The present article seeks to address the norm and forum shopping in investment arbitration that results from the overlap between contract and treaty claims. By no means new, the proliferation of parallel proceedings arising from the same dispute has brought this problem to the forefront of investment arbitration again. The overlap stems from the lack of well-defined spheres of application between treaty and contract: arbitral tribunals have extended the scope of treaties to govern conduct that is not necessarily sovereign, and have construed substantive standards in a broad manner, on occasion reducing the standards to the protection of an investor’s expectations. The difficulty with such interpretations is that they present an investor with a choice as to what standard the host state’s conduct should be measured against, and before which tribunal this should take place. In extreme cases, investors are allowed to initiate simultaneous or subsequent proceedings in connection with the same set of facts before different fora. This discretionary choice of norms and/or duplication of proceedings maximises the investor’s chances not only of recovery but also of success, can allow the investor to put a host state under undue pressure, and may lead to inconsistent decisions. To address this issue, one can clarify the scope of investment treaties by clarifying the conduct treaties are meant to govern and the standards of protection they offer, thus ensuring distinct normative spheres for contract and treaty. Where two norms must nevertheless coexist in respect of the same conduct, tools such as fork-in-the road and waiver provisions can ensure that an investor cannot pursue parallel claims, whether directly or indirectly. If parallel proceedings are nevertheless initiated, concepts such as res judicata have been used to bind the investor to the decisions of the commercial tribunal through which it is claiming even if not a party to the commercial arbitration.","PeriodicalId":166341,"journal":{"name":"BCDR International Arbitration Review","volume":"43 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124752539","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Reliance on Investment Treaty Standards to Claim for Failures to Recognize or Protect Intellectual Property Rights","authors":"W. Ahern, Dany Khayat","doi":"10.54648/bcdr2016036","DOIUrl":"https://doi.org/10.54648/bcdr2016036","url":null,"abstract":"This article explores novel situations in which investment protection treaties might provide relief to foreign investors with respect to their intellectual property rights. In particular, the article considers circumstances in which foreign investors might have answerable claims when their intellectual property rights are not recognized—through, for example, a refusal to register—or are interfered with by third parties in a manner that could or should have been prevented by the national authorities. The potential role and impact of political motivation in state action or inaction is considered. In exploring these issues, reference is made to the case of Anheuser-Busch Inc. v. Portugal brought before the European Court of Human Rights, as well as other hypothetical scenarios.","PeriodicalId":166341,"journal":{"name":"BCDR International Arbitration Review","volume":"31 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124807304","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Investment Arbitration under Multilateral Treaties in the Middle East","authors":"Lillian Khoury, C. Mouawad","doi":"10.54648/bcdr2016027","DOIUrl":"https://doi.org/10.54648/bcdr2016027","url":null,"abstract":"Arab claimants seeking to resolve their investment disputes in the Middle East have found variable success in identifying bilateral investment treaties under which to bring their claims. The recent surge in investment arbitration following the political upheavals in the region has prompted unlucky investors to seek out other instruments that provide access to investor-state dispute resolution. Two regional treaties, long dormant as investment instruments, have recently emerged as potential alternatives: the Unified Agreement for the Investment of Arab Capital in the Arab States; and the Agreement on Promotion, Protection and Guarantee of Investments among Member States of the Organisation of the Islamic Conference. This article explores the dispute resolution processes, substantive protections, enforcement mechanisms, and availability of state claims and counterclaims under each treaty, as well as the reforms necessary to ensure their present and future viability.","PeriodicalId":166341,"journal":{"name":"BCDR International Arbitration Review","volume":"209 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128163784","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Development of Investment Arbitration in Iraq: Domestic Law, the ICSID Convention and Iraq’s Investment Treaties","authors":"Adam Al-Sarraf, N. Calamita","doi":"10.54648/bcdr2016032","DOIUrl":"https://doi.org/10.54648/bcdr2016032","url":null,"abstract":"Unlike other developing states in the 1980s, 1990s and 2000s, Iraq did not participate in the proliferation of bilateral investment treaties and the widespread adoption of arbitration for the resolution of disputes falling within their scope. As a consequence, in the years since the fall of Saddam Hussein and the end of the U.S.-led occupation, Iraq has had to consider how and on what terms it will participate in this global regime. This paper examines the development of international arbitration as an institution in Iraq with reference to both Iraq’s domestic law and its international commitments.","PeriodicalId":166341,"journal":{"name":"BCDR International Arbitration Review","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128484712","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Towards a New Conceptualization of International Investment Agreements","authors":"H. El-Kady","doi":"10.54648/bcdr2016031","DOIUrl":"https://doi.org/10.54648/bcdr2016031","url":null,"abstract":"Bilateral investment treaties (BITs) have proved to be effective instruments in providing protection for foreign investors, but their role in contributing to economic growth and inclusive development in host states remains unclear. If BITs are to have a more pronounced impact on host states’ economic development, their underlying conceptualization could be reassessed and their provisions adapted to help tackle emerging economic, social and environmental concerns and more directly impact foreign direct investment (FDI) inflows. Despite the advent of what may be considered a new generation of treaties, BITs continue to fall short of proactively helping states achieve these objectives. First, their scope is narrow and their provisions are broad, covering investment protection without addressing the broader agenda of development policy necessary to a more inclusive economic growth model. Second, the nature of BIT provisions may deter host states from taking any actions or measures in the public interest that could be harmful to foreign investors. This can make it more challenging for states to implement new policies or reform existing ones in pursuit of economic growth and inclusive development. Third, BITs were traditionally designed not so much to increase FDI inflows into host countries, but rather to provide a stable and predictable legal framework for foreign investors. The absence of proactive investment promotion and facilitation provisions may have undermined their potential to increase FDI flows. In addition to these conceptual challenges, a number of more technical policy choices need to be addressed. For example, the definition of investment is all-encompassing and does not reflect any strategic investment policy priorities of the host state; the fair equitable treatment standard remains elusive despite recent attempts to clarify its meaning; “indirect” expropriation is open to broad and diverse interpretations; and the investor-state dispute settlement mechanism fails to provide sufficient consistency and predictability in arbitral awards. This paper proposes a selection of policy options to address some of the conceptual and substantive challenges of BITs with a view to making them more conducive to economic growth and more reflective of inclusive development policies.","PeriodicalId":166341,"journal":{"name":"BCDR International Arbitration Review","volume":"62 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123466067","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Will the Future See More Investment Arbitrations Taking Place in the Middle East?","authors":"Scott Vesel","doi":"10.54648/bcdr2016028","DOIUrl":"https://doi.org/10.54648/bcdr2016028","url":null,"abstract":"To date, few, if any, investment arbitrations have been conducted in the Middle East. This situation contrasts with the fundamental historical importance the region has played as the location of seminal disputes that have helped to establish the international arbitration regime as we know it today, as well as the important and growing role of Middle Eastern parties in both commercial and investment arbitration. This essay considers the general trend towards decentralization of seats and venues in international arbitration and the factors that may eventually lead to more arbitrations taking place within the region.","PeriodicalId":166341,"journal":{"name":"BCDR International Arbitration Review","volume":"78 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125074452","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"State-Owned Enterprises as Claimants before ICSID: Is the Broches Test on the Ebb?","authors":"R. Mohtashami, Farouk El-Hosseny","doi":"10.54648/bcdr2016034","DOIUrl":"https://doi.org/10.54648/bcdr2016034","url":null,"abstract":"State-owned enterprises (SOEs) play an increasingly crucial role in the global economy as foreign investors. In principle, an SOE is a “juridical person” that may qualify as a “national of another Contracting State” within the meaning of Article 25 of the ICSID Convention. An SOE from an ICSID Contracting State that made an investment in another Contracting State should, a priori, be entitled to standing before the Centre. One of the lead drafters of the ICSID Convention, Aron Broches, confirmed that SOE claims against states under the Convention should be permissible provided that the SOE was not “acting as an agent for the government” or “discharging an essentially governmental function”. This statement has become known as the “Broches test”. This article examines recent decisions addressing the Broches test, and questions the extent to which the test is likely to preclude SOEs from standing before ICSID.","PeriodicalId":166341,"journal":{"name":"BCDR International Arbitration Review","volume":"50 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129126696","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}