Arbitration community calls for improvement of the system

In anticipation of the 50th anniversary of the International Centre for Settlement of Investment Disputes (ICSID), a renowned practitioner and arbitrator Hamid Gharavi of Derains & Gharavi published a strong criticism of the existing system of annulment proceedings under the ICSID rules. Ghravi expresses concern about ‘the unbalanced and extraordinary power that the secretary-general of ICSID’ and urges improvements in the system.

The article entitled ‘ICSID annulment committees: the elephant in the room’ constitutes a good and welcomed example of the ongoing debate within the arbitration community to improve the system.

The article is available at the Global Arbitration Review website.

Former ICJ Judge Schwebel defends ISDS

Former long-time judge and president of the International Court of Justice, highly regarded arbitration specialist and one of the most senior jurist of the globe wrote an excellent short piece for the Columbia FDI Perspectives, an occasional series of perspectives on important and topical foreign direct investment (FDI) issues.

Judge Schwebel states, inter alia, that:

  • The available research shows that investment arbitration is by no means biased against States.
  • Even though the system is asymmetrical, which means that only investors can initiate a claim, States are able initiate a counterclaim.
  • The criticism to the effect that investment arbitration constraints a State’s powers is opaque, as critics fail to recognize that the purpose of all international treaties is to limit the State powers.

The article also offers some thoughts how to develop and improve the current system of investment arbitration. It concludes that “[t]hesubstitution of national adjudication for international investment arbitration would be a regressive development that is to be resisted rather than furthered.”

The article is available on the Columbia FDI Perspectives website under the following link:

EFILA’s SG will speak on CETA at McGill University

S-G of EFILA, Nikos Lavranos, will speak at the “Conference on the Canada – EU Comprehensive Economic and Trade Agreement” to be held at McGill University in Montreal on 31 October – 1 November, 2014. More information about the conference is available here

EFILA’s S-G speaks at the Annual Conference of the Dutch Arbitration Association

S-G of EFILA, Nikos Lavranos, spoke at the 2014 Annual Conference of the Dutch Arbitration Association in Amsterdam (September 18, 2014) as one of the panelists of the investment arbitration session. More information about the conference is available here

Australian Senate against exclusion of ISDS from FTAs

On 27 August 2014, the Foreign Affairs, Defence and Trade Legislation Committee of the Australian Senate recommended that the Trade and Foreign Investment (Protecting the Public Interest) Bill 2014, proposed in response to public concern over the risks that ISDS provision might pose to Australian public policy, not be passed.

The report of the Committee is available here

To read more, please click here

Record awards in Yukos cases

On 28 July 2014, the Permanent Court of Arbitration has published awards from three cases involving former shareholders of OAO Yukos Oil Company (Yukos) and the Russian Federation.

The cases, which commenced in 2005 under the Energy Charter Treaty of 1994, were heard together before the same arbitral tribunals composed of The Hon. L. Yves Fortier PC CC OQ QC (Canada – Chairman), Dr. Charles Poncet (Switzerland) and Judge Stephen M. Schwebel (USA).

The arbitral tribunal has found that the action taken by the Russian Federation amounted to an expropriation of shareholders’ investments in Yukos in breach of Article 13(1) of the Energy Charter Treaty.

The tribunal granted over USD 50 bn to the claimants, which constitutes the highest award ever in the history of investment arbitration.

The awards in the Yukos case prove the value and the benefits of ISDS for investors whose investments have been damaged by measures inconsistent with the international legal obligations and who were unable to pursue their rights before the courts of the host State.

The award also proves that ISDS proceedings provide the only available relief for investors against countries which act unpredictable and violate their international obligations. It is these kind of awards that underline the continued importance of independent, impartial and effective dispute settlement.

Finally, the award shows the expertise of the arbitral tribunal in its extensive analysis of more than 600 pages, which illustrates that investment arbitral tribunals can deliver judicial decisions of the highest quality.

A great day for the Rule of Law.

The awards are available on the website of the Permanent Court of Arbitration.

EC issues a preliminary report on ISDS consultation

On 18 July 2014, the European Commission released its preliminary statistical report on the responses to the Investor-to-state dispute settlement (ISDS) consultation which closed on Sunday 13 July. The report provides a statistical breakdown of the responses received according to country, individual/organisation etc.

The Commission received a total of 149 399 responses, out of which 99.62 % came from individuals, and 569 from organisations (0.38%).

It is expected that the Commission will come out with an indication of its position and next steps around November of this year.

The report is available here.

UK government supports the TTIP

The UK government  has published a report in support of the TTIP in response to the to the House of Lords European Union Committee’s Fourteenth Report entitled ‘The Transatlantic Trade and Investment Partnership’. Part 2 of the government’s report responds to myths and misconceptions about the TTIP.

The Government’s report is available here.

For the House of Lords European Union Committee’s Fourteenth Report, please click here.

EFILA defends ISDS among criticism

Designated S-G of EFILA, Nikos Lavranos, and EFILA’s Board member, Patricia Nacimiento, defend Investor-State Dispute Settlement following the decision of the upper chamber of the German parliament, the Bundesrat, questioning the need for dispute resolution mechanism in investment treaties.


To read more, please click here.

EFILA’s response to the EU consultation on ISDS

On Saturday 12 July 2014 EFILA has submitted its response to the EU Commission’s consultation on investment protection and investor-to-state dispute settlement (ISDS) in the Transatlantic Trade and Investment Partnership Agreement (TTIP). The EFILA’s response is available here.