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This document provides a summary of a legal dispute between ACF Renewable Energy Limited and the Republic of Bulgaria, submitted to the International Centre for Settlement of Investment Disputes (ICSID). The dispute revolves around the jurisdiction of the tribunal in light of the Achmea Judgment by the Court of Justice of the European Union. The document outlines the arguments presented by both parties and the tribunal's analysis of the relevant legal texts. The tribunal ultimately concludes that it has jurisdiction based on the Energy Charter Treaty and the ICSID Convention, and defers the decision on costs. [Extracted from the article]

This document provides an overview of a dispute between Kaloti Metals & Logistics, LLC and the Republic of Peru that was submitted to the International Centre for Settlement of Investment Disputes (ICSID). The document outlines the procedural history of the case, the factual background, the claims and requests for relief made by both parties, and the arguments presented. The document also discusses the jurisdictional requirements for investments under the United States-Peru Trade Promotion Agreement (TPA) and the ICSID Convention. Ultimately, the tribunal concludes that Kaloti's activities in Peru do not constitute an investment and therefore lacks jurisdiction in the case. [Extracted from the article]

This document discusses a dispute between Italy and claimants who invested in photovoltaic (PV) plants. Italy implemented incentive schemes to comply with the EU Directive on renewable energy, but later reduced tariffs and eliminated a specific regime. The claimants argue that Italy violated the Energy Charter Treaty, while Italy argues that it has the right to regulate. The document provides a summary of the arguments presented by both parties and discusses the interpretation of the relevant treaty article. The tribunal will address these issues in subsequent sections. [Extracted from the article]

This document provides a summary of a dispute between the Claimants and the Respondent regarding snow crab fishing rights in the Barents Sea. The parties have differing interpretations of the law and the application of international law. The Claimants argue that their rights were violated and that the Respondent breached treaties and obligations, while the Respondent denies these allegations and justifies its actions. The document analyzes the arguments and concludes that the Respondent did not violate any laws or obligations. The Tribunal dismisses the claims made by the Claimants and orders them to pay the arbitration costs. [Extracted from the article]

The book "ICSID Rules and Regulations 2022: Article-by-Article Commentary" edited by Richard Happ and Stephan Wilske provides a comprehensive commentary on the new International Centre for Settlement of Investment Disputes (ICSID) Rules and Regulations that came into effect on July 1, 2022. The book covers the newly amended ICSID Administrative and Financial Regulations, ICSID Institution Rules, ICSID Arbitration Rules, and ICSID Conciliation Rules. It also includes essays on various topics related to investment arbitration. The new Rules aim to improve time efficiency, introduce a new procedure for challenging arbitrators, and enhance transparency and access to information. The book is a valuable resource for anyone involved in ICSID dispute settlement. [Extracted from the article]

This document is a summary of a decision on jurisdiction in an arbitration case between Agility Public Warehousing Company and the Republic of Iraq. The case involves a dispute over the Claimant's alleged investment in an Iraqi telecommunications joint venture. The document provides an overview of the procedural history and arguments presented by both parties. The Tribunal ultimately decides on the jurisdiction of the case. The summary does not make any judgments or conclusions about the case, but provides a factual account of the proceedings. [Extracted from the article]

In this article, the author examines the status of state-owned companies as claimants under the 1965 Washington Convention on the settlement of investment disputes between States and nationals of other States and the competence of the International Centre for Settlement of Investment Disputes to consider claims of the stateowned companies. The paper considers possible limitations of the right of action of the state-owned companies, reflected in the so-called “Broches test”. As a result of the analysis of the case law of international investment tribunals the author concludes that the right of recourse to international investment arbitration shall in any case be available for the state-owned companies which perform a commercial function. In addition, the author proposes an algorithm for determining whether a state-owned company, which is authorized to exercise elements of state power, has the right of action.

The prominence of state-controlled entities (SCEs) in foreign direct investment (FDI) flows has created multilayer regulatory challenges. The nature of SCEs and geo-economic considerations related to their investments have exacerbated investment-related concerns and, since the global financial crisis and during the global pandemic, triggered legal reforms. Concurrently, SCEs have increasingly relied on international investment arbitration to solve their disputes. This Article examines the role of the International Centre for Settlement of Investment Disputes (ICSID) in resolving cases brought by an increasing number of sovereign investors. The Article begins with a linguistic analysis of the ICSID Convention's relevant provisions, which lack a definitive regulatory position, and then reviews historical and drafting documents showing the position of some states that participated in the negotiations. Part III uncovers new cases and further examines understudied ones, and introduces a holistic and systematic analytical study of the case law, drawing lessons from consistencies in the awards. In Part IV, the awards are grouped, focusing on salient issues deriving from the diverse factual and legal elements of the cases. Initially, Part IV focuses on the first ICSID case in which a state-owned enterprise acts as a claimant. The analysis continues with the first application of the Broches test, an examination of awards in which investors were operating for little or no profit, and a review of awards in which sovereign investors were treated as any other privately owned investor. Last, the Part reviews the particularities of Chinese SCEs in FDI flows and ends with an assessment of the role of sovereign wealth funds and related awards. A comprehensive evaluation of the case law reveals that European SCEs have massively relied on the ICSID system, in contrast with Chinese SCEs that have made marginal use of it. Part V explains the relevance of the consistent approaches and argues that ICSID tribunals have established a jurisprudence constante in dealing with SCEs that confirms their access as claimants in investor-state disputes. Conversely, Part VI provides innovative approaches and instruments to assess the owner's role in sovereign investors' transactions and prevent distortions of the Centre's jurisdiction. The last Part summarizes the research findings. [ABSTRACT FROM AUTHOR]

The definition of an investment under Article 25 of the ICSID Convention continues to attract a divergence of views. Ever since its use in 2001, the Salini Test, in its various forms, has become the predominant method that tribunals use to determine whether there is an investment. However, the Salini Test is hardly free from controversy, and suffers from two significant issues. First, its criteria are often subject to differing interpretations, leading to confusion over how the test should actually be applied. Second, the Salini Test has lost its legal force over time, as it has been relegated to factors that are 'typical characteristics of an investment' rather than jurisdictional requirements, of which the latter is arguably its proper role as part of a 'double-keyhole' test. This article addresses these issues by taking a detailed look at the individual criteria of the Salini Test and its original purpose. It proposes that (i) the Salini Test remains the best method for determining the meaning of 'investment' in Article 25 of the ICSID Convention, and (ii) regardless of whether the Salini Test is jurisdictional requirements or indicative factors, its individual criteria are in urgent need of refinement due to their inconsistent usage. [ABSTRACT FROM AUTHOR]

Copyright of Pravnik is the property of Czech Academy of Sciences, Institute of State & Law and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

There is a pervasive sense of tension between investor-State arbitration (ISA) and international climate change law. Both fields use different rationalities and evolved through completely different treaty systems. The tensions between the regimes are evident in the practice of ISA tribunals that hardly engage in analyses of States' climate obligations. To mitigate this, this article proposes that climate aspirations must be integrated at various levels of the ISA regime by different players and at various stages. While States can contribute to this by drafting investment treaties better; arbitrators can reconcile the tensions by using pro-climate interpretative mechanisms; arbitration institutes can formulate procedural rules embedding third party participation and allowing counterclaims in ISA. Counsels and disputing parties can adopt best practices in managing arbitrations in a sustainable way, use climate and net zero aligned clauses and empower the arbitration tribunal to interpret and modify applicable law to align it to climate objectives. [ABSTRACT FROM AUTHOR]

This article examines the amendments of the Regulations and Rules of the International Centre for Settlement of Investment Disputes (ICSID) recently approved by the Administrative Council of ICSID. The amendments are of all regulations and rules for proceedings that ICSID has long been authorized to administer – ICSID Convention and Additional Facility conciliation and arbitration and fact-finding proceedings. As part of the amendments, ICSID has also issued a new set of mediation rules. For context, the article briefly recalls previous amendments of the Regulations and Rules before discussing highlights of the newly amended Regulations and Rules. A concluding section points out that the amendments, which respond to many criticisms of investor-State arbitration under investment treaties (ISDS), will generally apply to all ICSID ISDS arbitrations initiated on or after the effective date of the amendments (1 July 2022). [ABSTRACT FROM AUTHOR]

The ICSID has completed a six-year process of consultation with the ICSID members and the public to revise its rules and regulations that have remained unchanged since 2006. The amendments, applicable from 1 July 2022, are aimed at modernizing the rules based on the already established ICSID practice and providing tools for a more transparent, cost- and time-effective and environmental friendly procedure. [ABSTRACT FROM AUTHOR]

The present study shall assess the various modes and kinds of investments in the recent past and how the investment in intangibles has witnessed growth in the recent decade. This doctrinal study found that Intellectual Property Rights (IPR) as an investment has been in use since the late 1900s in various international agreements, apart from the traditional methods of investment in IPR such as, licensing, assignment, and securitization. Though, some countries do not have legislations to deal with the traditional methods of investment, International Investment Agreements (IIAs) have been a driving force for the investments in IPR. Since the advent of such an agreement, countries have always mentioned IP protection as an essential clause. However, the differing laws of the countries paved the way for varied definitions and kinds of IP protection. It has been found from the existing literature that at the present, most IIAs have emphasized investor protection priority over IP protection which also forms an essential part of the agreement. This requires that there be adequate laws to supplement the agreements at both the domestic and international levels. The IP forming the heart of the agreement should be given priority in terms of protection coupled with adequate redressal mechanisms. [ABSTRACT FROM AUTHOR]

This article sets out in detail the proposition of investor-State mediation and examines recent developments in the field. The article also sheds light on practicalities such as the agreement to mediate, the necessity of an ongoing consent, timing issues, mediation rules, the process, criteria on how to choose the mediator and mediation counsel, etc. Moreover, the article analyzes the two main reasons for the limited uptake of ICSID conciliation. Also, it sets out current political and structural obstacles to settlement of investment disputes. Ways to overcome these obstacles in the future are being suggested. Furthermore, current discontent in ISDS is compared with what investor-State mediation is offering in this regard. Eventually, it is concluded that investor-State mediation, although no panacea to every dispute, can be a valuable addition to the ISDS toolbox. [ABSTRACT FROM AUTHOR]

The article discusses legal issues involving investor-state arbitration as a method of resolving international disputes by analyzing the case Sociedad General de Aguas de Barcelona S.A. v. Argentine Republic. Other topics include the international investment agreements (IIA) as instruments of international law, the Calvo doctrine, and the jurisdiction of the International Centre for Settlement of Investment Disputes (ICSID) over investment disputes.

Since the adoption of the International Centre for Settlement of Investment Disputes (ICSID) and the United Nations Commission on International Trade Law Conciliation Rules, only a small number of investor-state disputes have been referred to conciliation. The common formulation of investor-state dispute settlement (ISDS) clauses, that carry advance consent to conciliation and arbitration in investment treaties, suggests that the choice between these two dispute resolution mechanisms may have conflicting interpretations. Under one interpretation, disputants have an option to choose conciliation and then proceed with arbitration; the other interpretation suggests that selection of conciliation is to the exclusion of arbitration. Incentives, such as the recent adoption of the Singapore Convention on Mediation and proposed amendments by ICSID, have been put forward to promote alternative dispute resolution mechanisms in ISDS. This Article, however, argues that recourse to investor-state conciliation will not increase unless mediation/conciliation are made mandatory before arbitration, and the source of conflicting interpretations of the choice between conciliation and arbitration is eliminated. [ABSTRACT FROM AUTHOR]

This extended case note underscores a perplexing contemporary issue of public international law as it interacts or intersects with international arbitration law. The Federal Court of Australia was recently tasked to adjudicate an issue that once again exposed the nuanced question of whether the ICSID Convention preserves immunity from enforcement and execution, or only for the latter. The international case law on this point has been sparse, whereas one of the leading cases in comparative international law dates back to 1986 and comes from the Southern District of New York—the case of Liberian Eastern Timber Corporation (LETCO) v. The Government of the Republic of Liberia. This note deals with the case between Eiser Infrastructure (later Infrastructure Services Luxembourg) and the Kingdom of Spain, which invited a nuanced comparative analysis of whether an ICSID award-debtor state can invoke the plea of sovereign immunity to shield against enforcement. Spain submitted that it would be futile for the court to convert an ICSID award into a judgment only to have that judgment rendered unenforceable on the grounds of immunity when execution is sought. According to Spain, a “zombie judgment” would be constituted. The first instance of the Federal Court of Australia, like the Southern District of New York, clarified and approved the distinction between enforcement and execution. But the second instance did not, and instead reasoned that making a judgment of the award was considered to fall within recognition proceedings. Conclusively then, the second instance deviated in reasoning from the first instance (and LETCO) but got the holding right. Thus, the Federal Court of Australia has both clarified the subject-matter and added confusion to it simultaneously. This author makes the point that recognition and enforcement are categorically and unequivocally pre-execution matters that fall within the realm of a local courts’ jurisdictional ambit by submission (or waiver). This note makes the broader point that judicial decisions stemming from the Australian courts, like French, U.S., and other trade-friendly nations’ courts, have a prominent role to play as subsidiary means of determining rules of public international law. Thus, the outcome in the Federal Court of Australia plays an important role in international comparative law.Spain also submits that if the applicants’ contention, that the effect of Arts 54(3) and 55 is to limit consideration of immunity to the time after a Centre award is registered as a judgment, was accepted it would lead to an absurdity – the court would be engaged in an exercise in futility by converting a Centre award into a judgment only to have that judgment rendered unenforceable on the grounds of immunity when execution is sought. Spain submits that, in other words, a “zombie judgment” is created and that it cannot have been the intention of the legislature to create a scheme in which the courts would participate in such an absurdity.[1] [ABSTRACT FROM AUTHOR]

Copyright of Al-Rafidain for Rights is the property of Republic of Iraq Ministry of Higher Education & Scientific Research (MOHESR) and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Third-party funding is a recent yet rapidly growing phenomenon in investment arbitration. While it enables investors lacking funds to pursue remedies against States, it exposes States to greater risk of inability to recover arbitration costs. Against this background, this article examines the legal principles on security for costs and, contrary to the view of several tribunals and commentators, it argues that in cases involving third-party funding and the funding agreement does not cover potential adverse costs, there is a presumption in favour of ordering security for costs. However, as revealed in recent decisions in Herzig , the current legal framework on security for costs, which is predicated on the bilateral investor–State relationship, is ill-suited to regulate the tripartite relationship involving third-party funders. Unfortunately, the discussions on Investor–State dispute settlement reform and the current proposal by the International Centre for Settlement of Investment Disputes (ICSID) on the ICSID Rules amendment have largely overlooked this problem. Thus, this article urges policy-makers to develop new rules to regulate the tripartite relationship involving third-party funders. [ABSTRACT FROM AUTHOR]

Although they are generally not subject to appeal the way court decisions typically are, investor-State arbitration awards can be reviewed—and potentially set aside—in a number of ways and on various bases. In this respect, investor-State arbitration under the auspices of ICSID is notable in that it provides a self-contained system for the review of arbitral awards by ICSID-appointed ad hoc committees. In the period 2000–2010, this feature of the ICSID system attracted criticism as ad hoc committees appeared to be overreaching in their review of arbitral awards, exercising less deference to the tribunal's decisions than what would be expected given the narrow bases for setting aside an award under the ICSID Convention. This article revisits the issue 10 years later, exploring whether ICSID practice has evolved in these areas and whether there remains a greater risk of unexpected de novo review by ICSID ad hoc committees. Looking at recent ICSID annulment decisions as well as the case law of arbitration-friendly jurisdictions, the article concludes that although the ICSID ad hoc committees have recently shown more restraint, they continue to interfere more with the tribunal's reasoning and decisions than many courts exercising the same function. [ABSTRACT FROM AUTHOR]

The prevailing view in international practice is that, by consenting to arbitration, a State does not waive its immunity from execution. Yet, in the context of arbitration administered by the International Centre for Settlement of Investment Disputes (ICSID) – as in the context of arbitration between States and private parties more generally – the problem of execution immunities is a very significant obstacle to the effective implementation of arbitral awards. When immunity from execution allows States to escape obligations they have freely undertaken, and when it withholds from claimants the fruits of a favourable award, the benefits of arbitration become illusory. This article contends that the prevailing view is no longer compelling. We argue that domestic courts can and should uphold the rule-of-law objectives and benefits of the ICSID Convention by adjusting their approach to immunity claims in the arbitral context: consent to arbitration should be interpreted as an implied waiver of immunity from execution. [ABSTRACT FROM AUTHOR]

Private law sources in international law were a main object of study of Sir Hersch Lauterpacht, who is considered one of the greatest international lawyers of the last century. In his time, the International Institute for the Unification of Private Law's Principles of International Commercial Contracts (PICC) did not exist. The first version of the PICC was only published in 1994, more than three decades after his death. In the year 2000, the disputing parties of an investment treaty arbitration case concluded before a tribunal chaired by his son, Sir Elihu Lauterpacht, a settlement agreement dated 20 March 2000, which would later be embodied in an International Centre for Settlement of Investment Disputes Additional Facility arbitral award issued by the tribunal on 18 September 2000, where they incorporated slightly modified PICC provisions. The present article will argue that private law sources are still important in certain areas of international law, such as investment arbitration. In investment arbitration, they are not only important in presence of contracts but they can also arguably be useful for the interpretation of treaties. Investment tribunals have indeed recognized the importance of the PICC for both the interpretation of contracts (transnational agreements) and the interpretation of treaties (international agreements). [ABSTRACT FROM AUTHOR]

The ad hoc Committee in Eiser Infrastructure Limited and Energía Solar Luxembourg SÀRL v Kingdom of Spain , annulled a unanimous ICSID award in its entirety, inter alia, on the ground that the tribunal was not properly constituted (Article 52(1)(a) of the ICSID Convention). The Committee found a 'manifest appearance of bias' with regard the claimant nominated arbitrator because the latter did not disclose his professional relationships with a Claimants' expert, who testified before the Tribunal. The decision contains doctrinal findings which may reinforce and broaden arbitrators' duty of disclosure. Nevertheless, the outcome of the decision – where proceedings, which began in 2013, at considerable expense to the parties, were annulled in full – seems unreasonable and inefficient. Moreover, some parts of the Committee's reasoning, as well as its decision to annul the award without giving the arbitrator an opportunity to refute the allegations raised against him, are questionable. [ABSTRACT FROM AUTHOR]

Damages have been described as 'the poor cousin of liability'. 3 Yet damages valuation plays an essential, albeit often controversial, role in investor–State arbitration. Quantum questions require the participants—parties, counsel, experts and especially arbitrators—to think creatively and critically about the applicable framework underlying damages valuation. Consistency and rigor in the tribunal's approach to damages contribute to the good administration of justice in a case. With that goal in mind, this article introduces a more structured legal framework underlying the valuation of damages arising from breaches of the fair and equitable treatment (FET) standard, which does justice to the unique nature of that standard and avoids 'horse trading' among tribunal members. Arbitrators may be inclined to apply valuation methodology associated with expropriation wholesale, or in slightly modified form, to FET claims notwithstanding the fundamental differences between FET and other standards, including with regard to the nature and level of the harm suffered by the investor. A structured approach featuring multiple stages must take account of these differences and must give factors such as contributory fault and valuation date their proper place through rigorous reasoning, lest the outcome, and justice itself, be compromised through over- or undercompensation. [ABSTRACT FROM AUTHOR]

In the context of international investment disputes, this paper investigates how arbitrator team characteristics affect team performance in solving disputes between a host country and a foreign investor. Our data include 277 judgments issued by arbitrator teams at the International Centre for Settlement of Investment Disputes at the World Bank from 1972 to 2018. The time to resolution and the quality of the final judgment, as measured by the requirement of a follow-on proceeding to rectify mistakes, are used to measure the team performance. We consider both biographical and professional characteristics of the arbitrators as determinants of the team performance. We find that mixed gender teams and previous team member's collaborations increase the time to resolution contrary to team members' experience and diversity in the professional background that decrease it. None of the team characteristics considered has an impact on the quality of the final judgment. Our findings talk to the current policy debate on the reform of the international investment arbitration system aiming to increase its effectiveness and transparency. [ABSTRACT FROM AUTHOR]

This essay identifies a doctrinal trend away from subject-matter jurisdiction for sovereign debt in investment treaty arbitration: prominent voices have espoused the view that sovereign debt is not an 'investment' and therefore not protected. It rebuts that notion, making the first normative case for why sovereign bond protections advance international investment law's goal of development. Combining the credible commitment model and efficient market hypothesis with empirical research on sovereign debt markets, it argues that by allowing high-risk, emerging-market countries to credibly commit to repayment, investor protections reduce those countries' cost of borrowing. It presents historical evidence from the drafting of the ICSID Convention and its political context to show that the creators of international investment law intended it to apply to sovereign debt. Next, it offers a systematic guide to parsing treaty clauses to evaluate jurisdiction, proposing an inductive, text-centered but purposivist approach that emphasizes legal predictability and economic incentives. In clarifying the mechanics of bond offerings, it discredits prevailing arguments against sovereign bond protection. Finally, it proposes superior alternatives to balance the needs of distressed countries and investors. [ABSTRACT FROM AUTHOR]

The last 15 years have witnessed a substantial rise of summary procedure to gradually become more and more significant in the world of investment arbitration since ICSID Arbitration Rules first introduced it in 2006. Before the emergence of this procedure that allows early dismissal of claims, various states have criticized the time and costs needed to defend their position in investment proceedings. Against this background, the birth of summary procedure aims to help parties to save time and costs and avoid unnecessary consumption of parties' resources by disposing of manifestly frivolous and unmeritorious at an early stage of the proceedings. This feature has captured much attention since major arbitration institutions started to adopt it, with ICSID being the pioneer, followed by the Singapore International Arbitration Centre (SIAC) and the Arbitration Institute of the Stockholm Chamber of Commerce (SCC). Given its increasing importance in investment disputes, the ICSID has lately published a series of Working Papers which, among many other things, proposed to enhance the rule on 'manifest lack of legal merit'. This article aims to look back on the evolution of summary procedure in investment arbitration for the last 15 years by examining its genesis and development, the current regime, and tribunals' application of this procedure in practice, the future contemplated by the ICSID proposed amendments. [ABSTRACT FROM AUTHOR]