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Part VI The Post-Award Phase, 28 Review of non-ICSID Awards by National Courts 第六部分裁决后阶段，28国家法院对非icsid裁决的审查
Arbitration Under International Investment Agreements Pub Date : 2018-07-19 DOI: 10.1093/LAW/9780198758082.003.0028
H. Kaj, Eliasson Nils
{"title":"Part VI The Post-Award Phase, 28 Review of non-ICSID Awards by National Courts","authors":"H. Kaj, Eliasson Nils","doi":"10.1093/LAW/9780198758082.003.0028","DOIUrl":"https://doi.org/10.1093/LAW/9780198758082.003.0028","url":null,"abstract":"In investment arbitration, just as in private commercial, the final award is often merely the starting shot for challenge and/or enforcement proceedings that may take as long as, or even longer than, the prior proceedings. This chapter discusses the challenge and review of investment treaty awards in municipal courts, based on 38 cases from 12 different jurisdictions: Belgium, Canada, Czech Republic, England, France, Germany, The Netherlands, Russia, Sweden, Switzerland, Singapore, and the United States. Most Canadian and US cases challenge NAFTA awards, whereas most European cases challenge bilateral investment treaty awards. The remaining cases challenge awards under the Energy Charter Treaty, one challenge of a decision on jurisdiction under the Kyrgyz Foreign Investment Law, and two challenges of awards under the CIS Convention for the Protection of Investors Rights. These jurisdictions are frequently chosen as the seat of non-ICSID arbitrations.","PeriodicalId":364330,"journal":{"name":"Arbitration Under International Investment Agreements","volume":"38 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115278321","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}
引用次数: 0
Part V Remedies and Costs, 24 Interim Relief in Investment Treaty Arbitration 第五部分:投资条约仲裁中的救济与费用
Arbitration Under International Investment Agreements Pub Date : 2018-07-19 DOI: 10.1093/law/9780198758082.003.0024
K. Gabrielle, Antonietti Aurélia, Potestà Michele
{"title":"Part V Remedies and Costs, 24 Interim Relief in Investment Treaty Arbitration","authors":"K. Gabrielle, Antonietti Aurélia, Potestà Michele","doi":"10.1093/law/9780198758082.003.0024","DOIUrl":"https://doi.org/10.1093/law/9780198758082.003.0024","url":null,"abstract":"This chapter reviews the requirements for a party to obtain interim relief from an arbitral tribunal, the measures that can be ordered, their nature, and effects. It also considers whether the parties to the dispute can seek interim relief from domestic courts rather than from the arbitral tribunal. The scope of the interim relief available in the context of investor-state disputes is broad enough to meet the parties’ legitimate needs for temporary protection, subject to limitations which may be found in the relevant treaty, such as the ones contained in NAFTA Article 1134. However, applicants are also faced with a high threshold when seeking to establish that the interim relief requested is urgent and needed. This may explain the reluctance of many tribunals to grant interim relief in the context of investor-state arbitration, whether in the International Centre for Settlement of Investment Dispute (ICSID) system or under the United Nations Commission on International Trade Law Rules.","PeriodicalId":364330,"journal":{"name":"Arbitration Under International Investment Agreements","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125315456","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}
引用次数: 0
Part I Investment Treaties and the Settlement of Investment Disputes: The Framework, 1 Bilateral Investment Treaties and Investment Provisions in Preferential Trade Agreements: Recent Developments in Investment Rule-making 第一部分投资条约和投资争端的解决:框架;1双边投资条约和优惠贸易协定中的投资条款:投资规则制定的最新发展
Arbitration Under International Investment Agreements Pub Date : 2018-07-19 DOI: 10.1093/LAW/9780198758082.003.0001
Echandi Roberto
{"title":"Part I Investment Treaties and the Settlement of Investment Disputes: The Framework, 1 Bilateral Investment Treaties and Investment Provisions in Preferential Trade Agreements: Recent Developments in Investment Rule-making","authors":"Echandi Roberto","doi":"10.1093/LAW/9780198758082.003.0001","DOIUrl":"https://doi.org/10.1093/LAW/9780198758082.003.0001","url":null,"abstract":"This chapter argues that investment disputes, particularly those that have arisen in the context of the implementation of NAFTA, have influenced the refinement of the provisions of new generation international investment agreements (IIAs) as well as the inclusion of a series of procedural and substantive innovations. It addresses the main distinction between BITs and investment chapters in preferential trade agreements (PTAs), focusing on the evolution of their respective rationales. It looks at the main features of the new generation of IIAs and explains how such features respond to challenges derived from the interpretation of substantive and procedural provisions included in previous agreements. The discussion is organized under two themes: (i) moving from the original exclusive focus on investment protection towards also promoting liberalization of investment flows; and (ii) the impact of investor-state dispute settlement on investment rule-making.","PeriodicalId":364330,"journal":{"name":"Arbitration Under International Investment Agreements","volume":"96 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122567300","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}
引用次数: 1
Part IV Guide to Key Substantive Issues, 19 The Law Applicable in Investment Treaty Arbitration 第四部分主要实质性问题指南，19投资条约仲裁适用的法律
Arbitration Under International Investment Agreements Pub Date : 2018-07-19 DOI: 10.1093/law/9780198758082.003.0019
Bani Yas
{"title":"Part IV Guide to Key Substantive Issues, 19 The Law Applicable in Investment Treaty Arbitration","authors":"Bani Yas","doi":"10.1093/law/9780198758082.003.0019","DOIUrl":"https://doi.org/10.1093/law/9780198758082.003.0019","url":null,"abstract":"Investment treaty arbitration, being an arbitral process, in no way differs from international commercial arbitration in that the principle of party autonomy is the primary rule governing the arbitration, including as regards the law applicable to the substance of the dispute. When the applicable law has been chosen by the parties, the arbitrators have a duty to apply such law and nothing but such law. It is only in the absence of a choice by the parties that the arbitrators are entitled to exercise a degree of discretion in the determination of the applicable law. This chapter examines each of these situations in turn, before considering whether the specific nature of investment protection treaties has implications in terms of choice of law process.","PeriodicalId":364330,"journal":{"name":"Arbitration Under International Investment Agreements","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130369503","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}
引用次数: 0
Part I Investment Treaties and the Settlement of Investment Disputes: The Framework, 3 International Investment Dispute Settlement Mechanisms 第一部分:投资条约与投资争端的解决:框架，三个国际投资争端解决机制
Arbitration Under International Investment Agreements Pub Date : 2018-07-19 DOI: 10.1093/LAW/9780198758082.003.0003
Onwuamaegbu Ucheora
{"title":"Part I Investment Treaties and the Settlement of Investment Disputes: The Framework, 3 International Investment Dispute Settlement Mechanisms","authors":"Onwuamaegbu Ucheora","doi":"10.1093/LAW/9780198758082.003.0003","DOIUrl":"https://doi.org/10.1093/LAW/9780198758082.003.0003","url":null,"abstract":"This chapter begins by introducing the three institutions under whose auspices treaty-based investor-state arbitration proceedings have most commonly been conducted: the International Centre for Settlement of Investment Disputes (ICSID), the International Court of Arbitration of the International Chamber of Commerce (ICC), and the Arbitration Institute of the Stockholm Chamber of Commerce (SCC). Following a general overview of the three institutions, it examines certain procedural issues that may be considered by parties in deciding among them, assuming that consent exists. The intention is to highlight certain provisions in their arbitration rules that best demonstrate the main differences between them. Finally, the chapter examines the Rules of the United Nations Commission on International Trade Law under which the majority of ad hoc investor-state arbitrations have so far been conducted and draws certain contrasts between them and the rules of the institutions earlier discussed.","PeriodicalId":364330,"journal":{"name":"Arbitration Under International Investment Agreements","volume":"35 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123444701","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}
引用次数: 1
Part IV Guide to Key Substantive Issues, 23 The MFN Clause and Its Evolving Boundaries 第四部分关键实质性问题指南，23最惠国条款及其不断演变的边界
Arbitration Under International Investment Agreements Pub Date : 2018-07-19 DOI: 10.1093/law/9780198758082.003.0023
Smutny Abby Cohen, Polášek Petr, Farrell Chad
{"title":"Part IV Guide to Key Substantive Issues, 23 The MFN Clause and Its Evolving Boundaries","authors":"Smutny Abby Cohen, Polášek Petr, Farrell Chad","doi":"10.1093/law/9780198758082.003.0023","DOIUrl":"https://doi.org/10.1093/law/9780198758082.003.0023","url":null,"abstract":"This chapter discusses most-favoured-nation (MFN) clauses from early references in trade agreements to contemporary references in investor-state arbitrations. MFN clauses originated in early international trade practice and have continued to be incorporated in modern trade and investment treaties, both bilateral and multilateral. Their intended purpose is to lessen discrimination and encourage the growth of trade and foreign investment by ensuring that certain defined benefits accorded to one set of States (or their nationals, investments, goods, etc.) are extended to other States (or their nationals, investments, goods, etc.). In the investment treaty context, some commentators have observed that the right to a favourable dispute settlement mechanism is the primary concern of foreign investors, and investors often invoke MFN clauses to secure procedural rights that might otherwise be unavailable to them.","PeriodicalId":364330,"journal":{"name":"Arbitration Under International Investment Agreements","volume":"77 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126335973","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}
引用次数: 0
Part II Guide to Key Preliminary and Procedural Issues, 9 Piercing the Veil of Confidentiality: The Recent Trend towards Greater Public Participation and Transparency in Investment Treaty Arbitration 第二部分:关键的初步和程序性问题指南，揭开保密的面纱:投资条约仲裁中公众参与和透明度提高的最新趋势
Arbitration Under International Investment Agreements Pub Date : 2018-07-19 DOI: 10.1093/law/9780198758082.003.0009
J MenakerAndrea, Hellbeck Eckhard
{"title":"Part II Guide to Key Preliminary and Procedural Issues, 9 Piercing the Veil of Confidentiality: The Recent Trend towards Greater Public Participation and Transparency in Investment Treaty Arbitration","authors":"J MenakerAndrea, Hellbeck Eckhard","doi":"10.1093/law/9780198758082.003.0009","DOIUrl":"https://doi.org/10.1093/law/9780198758082.003.0009","url":null,"abstract":"Over the past few years, the US, Canada, and the EU have incorporated ‘transparency’ provisions into their investment treaties. Arbitration under those treaties thus will not be confidential, regardless of the arbitral rules governing them. By contrast, Russia’s 2016 regulation for the negotiation of investment treaties expressly provides for confidentiality of arbitration, including the award, unless both parties consent in writing to disclose information. This chapter traces the development of public disclosure and participation in investment arbitration. It is divided into three sections: public access to arbitral documents, third-party written submissions, and public access to arbitration hearings. Each section addresses developments under NAFTA Chapter 11, the evolution of the practice under the International Centre for Settlement of Investment Dispute (ICSID) Arbitration Rules, the approach taken by the new UNCITRAL Rules on Transparency, the status of other arbitration rules, and the practice of certain States as shown in their recent agreements.","PeriodicalId":364330,"journal":{"name":"Arbitration Under International Investment Agreements","volume":"20 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125956334","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}
引用次数: 0
Part II Guide to Key Preliminary and Procedural Issues, 5 An Overview of Procedure in an Investment Treaty Arbitration 第二部分:关键初步和程序问题指南，5投资条约仲裁程序概述
Arbitration Under International Investment Agreements Pub Date : 2018-07-19 DOI: 10.1093/LAW/9780198758082.003.0005
L. Barton
{"title":"Part II Guide to Key Preliminary and Procedural Issues, 5 An Overview of Procedure in an Investment Treaty Arbitration","authors":"L. Barton","doi":"10.1093/LAW/9780198758082.003.0005","DOIUrl":"https://doi.org/10.1093/LAW/9780198758082.003.0005","url":null,"abstract":"The procedure of investment arbitrations vary tremendously. Arbitrations can range from cases that take many years to conclude to cases that are heard within a year or two. The experience in one case may not hold for another. However, there are a number of common elements and fixed variables. An understanding of these elements and variables allows the reader to draw conclusions as to how a specific arbitration will likely play out. This chapter attempts to convey this understanding with a practical focus on the principal strategic decisions in such a case. It divides the activity in an investment-treaty arbitration into five sequential phases: (1) the preparation of the case, (2) the written submissions, (3) the hearing, (4) post-hearing activity, and (5) the decision and its aftermath; each of these activities is discussed in turn.","PeriodicalId":364330,"journal":{"name":"Arbitration Under International Investment Agreements","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115462879","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}
引用次数: 0
Part III Guide to Key Jurisdictional Issues, 18 The State’s Corruption Defence, Prosecutorial Efforts, and Anti-corruption Norms in Investment Treaty Arbitration 第三部分:关键司法问题指南，18国家在投资条约仲裁中的腐败辩护、起诉努力和反腐败规范
Arbitration Under International Investment Agreements Pub Date : 2018-07-19 DOI: 10.1093/law/9780198758082.003.0018
Brower Charles N, Ahmad Jawad
{"title":"Part III Guide to Key Jurisdictional Issues, 18 The State’s Corruption Defence, Prosecutorial Efforts, and Anti-corruption Norms in Investment Treaty Arbitration","authors":"Brower Charles N, Ahmad Jawad","doi":"10.1093/law/9780198758082.003.0018","DOIUrl":"https://doi.org/10.1093/law/9780198758082.003.0018","url":null,"abstract":"This chapter addresses two developments in the field of investment arbitration and corruption. First, it discusses the ‘binary’ or ‘harsh’ outcomes in investment arbitration awards and query whether there is scope within the field to level the playing field. It discusses cases where illegality — including corruption — has surfaced, whether as a question of jurisdiction, or of admissibility or of the merits. It then considers the viability of conditioning the State’s entitlement to assert corruption as a defence on proof of steps by the respondent State to investigate and prosecute public officials for corruption. Second, the chapter surveys recently concluded investment agreements that incorporated anti-corruption norms within their text, and considers the extent to which they address the issues facing corruption globally and within the investment arbitration space.","PeriodicalId":364330,"journal":{"name":"Arbitration Under International Investment Agreements","volume":"115 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133728198","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}
引用次数: 0
Part V Remedies and Costs, 25 Compensation and Damages in Investment Treaty Arbitration 第五部分:投资条约仲裁中的救济与费用、补偿与损害赔偿
Arbitration Under International Investment Agreements Pub Date : 2018-07-19 DOI: 10.1093/law/9780198758082.003.0025
Marboe Irmgard
{"title":"Part V Remedies and Costs, 25 Compensation and Damages in Investment Treaty Arbitration","authors":"Marboe Irmgard","doi":"10.1093/law/9780198758082.003.0025","DOIUrl":"https://doi.org/10.1093/law/9780198758082.003.0025","url":null,"abstract":"Investor-state arbitration is different from commercial arbitration between two private entities in that the involvement of a state or a state entity may entail considerations connected to sovereignty. States as sovereigns have certain rights and prerogatives stemming from the right to self-determination and their responsibility to safeguard public interests. On the other hand, states are also bound by the obligations they have freely decided to enter into. This chapter provides an overview of some important issues and problems in the calculation of compensation and damages in investor-state arbitration. It starts with the legal rules applicable and then addresses some important issues which must be identified in practice, such as causation and the valuation date. Thereafter, it discusses the circumstances which might limit the amount of compensation or damages before concluding with some remarks about the appropriate valuation method.","PeriodicalId":364330,"journal":{"name":"Arbitration Under International Investment Agreements","volume":"93 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132812985","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}
引用次数: 0
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