ITN

ITN  |  November 1, 2009

ALBA moves forward with plan to create regional investment arbitration alternative to ICSID at 7th Summit

By Fernando Cabrera Diaz November 3, 2009 Members of the Bolivarian Alliance for the Peoples of Our America (“ALBA”) are moving forward with a plan to create a regional arbitration centre intended to replace the often criticized International Centre for Settlement of Investment Disputes (“ICSID”). The final declaration of the 7th ALBA Summit, which took […]

ITN  |  November 1, 2009

F-W Oil Interests Inc. v. Republic of Trinidad & Tobago: A “Relatively Mundane Dispute” after all?

By Elizabeth Whitsitt November 3, 2009 More than three years ago, on March 3, 2006, Texas-based energy company, F-W Oil Interests Inc. (“FWO”) lost its fight against the Republic of Trinidad & Tobago (“T&T”) arising out of alleged breaches of the 1996 US investment protection treaty with the Caribbean nation (the “USA/T&T BIT”). � The […]

ITN  |  November 1, 2009

ICSID Tribunal Confirms that Allegations of Corruption Must Be Substantiated by “Clear and Convincing Evidence”

By Elizabeth Whitsitt November 3, 2009 On October 8, 2009 an ICSID tribunal, composed of Professor Piero Bernardini, Mr. Arthur W. Rovine, and Mr. Yves Derains, confirmed that allegations of corruption against a state will not be taken lightly.  In dismissing all claims by EDF (Services) Limited (“EDF”) against Romania, the tribunal’s decision affirms that […]

ITN  |  October 10, 2009

An ICSID Tribunal Introduces Innovative Steps Into Non-Disputing Party Procedure

  By Elizabeth Whitsitt October 11, 2009 In a high-profile arbitration involving mining interests owned by Piero Foresti, Laura de Carli and others versus the Republic of South Africa, an ICSID tribunal (the “Tribunal”) has accepted two petitions for participation by Non-Disputing Parties (“NDPs”) and imposed unprecedented procedural steps regarding document disclosure and participant feedback.  […]

ITN October 2009

ITN October 2009 In this issue: Ad Hoc Committee confirms Argentina is on the hook to Azurix for US$165 Million; Oral hearings held in NAFTA arbitration over Canadian pesticide ban; European Court of Justice renders judgment on Finland’s investment treaties with non-EU countries; Sweden begins compliance with earlier ECJ decision; Claim by Cargill leads to […]

ITN  |  October 1, 2009

Advisory committee submits report on the United States model bilateral investment treaty

By Damon Vis-Dunbar 2 October 2009 An advisory committee to the U.S. Department of State and the Office of the United States Trade Representative has issued its report on the United States’ model bilateral investment treaty. The United States is reviewing its model BIT with an emphasis on three topics in particular: (a) dispute settlement […]

ITN  |  October 1, 2009

Chevron launches investment-treaty claim against Ecuador

By Damon Vis-Dunbar 2 October 2009 Correction: The original headline in this article stated that Chevron Corporation alleges a denial of justice on the part of Ecuador. Chevron explains that this is incorrect. While Chevron claims that Ecuador “abuses the criminal justice system”, its notice of arbitration does not assert a denial of justice. The world’s second […]

ITN  |  October 1, 2009

In Brief: Telefonica and Argentina settle dispute

By Damon Vis-Dunbar 2 October 2009 The Spanish multinational Telefonica and Argentina have discontinued their arbitration at the International Centre for Settlement of Investment Disputes. The proceedings had been suspended since October 2006, as the parties worked towards a settlement agreement. Telefonica initiated its claim in 2002, alleging breaches of the Spanish-Argentina Bilateral Investment Treaty. […]

ITN  |  September 30, 2009

Claim by Turkish investor against Pakistan over highway project dismissed on the merits

By Damon Vis-Dunbar 2 October 2009 A claim by a Turkish investor against Pakistan has been dismissed on its merits after the Tribunal concluded that Pakistani government officials did not conspire in bad faith to expel the investor. The Claimant, Bayindir Insaat Turizm Ticaret Ve Sanayi A.S. was contracted to build a six-lane motorway between […]

ITN  |  September 29, 2009

Claim by Cargill leads to another loss for Mexico

By Elizabeth Whitsitt 2 October 2009 Mexico has suffered another loss in a series of investor-state arbitral disputes involving its sugar industry. While attempts have been made by Mexico to consolidate similar cases involving its sugar trade, such efforts have been unsuccessful resulting in a number of separate arbitral decisions. Most recently, a tribunal convened […]

ITN  |  September 28, 2009

Oral arguments held in ICJ dispute over pulp mills on the River Uruguay

By Fernando Cabrera Diaz 2 October 2009 Oral arguments have been held at the International Court of Justice (ICJ) in the dispute between Argentina and Uruguay over the latter’s authorization of paper mills on their shared River Uruguay.  As per its custom, the ICJ released daily transcripts of the hearings which took place between 14 […]

ITN  |  September 28, 2009

Advocate General renders opinion on Finland’s investment treaties with non-EU countries; Sweden begins compliance with earlier ECJ decision

October 2, 2009 Correction: The original version of this article indicated that the ECJ had rendered a decision in the case Finland. In fact, an Advocate General has issued an opinion, which is not binding on the Court. The article has been revised accordingly.   An Advocate General of the European Court of Justice (ECJ) […]

ITN  |  September 28, 2009

Oral hearings held in NAFTA arbitration over Canadian pesticide ban

By Fernando Cabrera Diaz 2 October 2009 Chemtura Corporation’s dispute with Canada over the phase-out of the agro-chemical Lindane headed to oral hearings in September after 8 years of legal wrangling. Chemtura, a U.S.-based chemical manufacturer, claims that Canada violated Chapter 11 of the North American Free Trade Agreement (NAFTA) when it banned Lindane in […]

ITN  |  September 28, 2009

Ad Hoc Committee confirms Argentina is on the hook to Azurix for US$165 Million

By Elizabeth Whitsitt 2 October 2009 Marking a final setback for Argentina in its protracted dispute with US-based water services firm Azurix Corp, on 1 September 2009 an ad hoc committee denied Argentina’s application to annul an ICSID tribunal’s previous decision awarding Azurix approximately US$165 Million for breach of Argentina’s obligations under the US-Argentina Bilateral […]

ITN September 2009

ITN September 2009 In this issue: Fork-in-the-road provision partially bars claim by Greek investor; Pantechniki v. Albania decision offers pragmatic approach to interpreting fork-in-the-road clauses; Ecuador prepares for life after ICSID, while debate continues over effect of its exit from the Centre; United States Trade Representative and State Department hold Public Hearing and Solicit Written […]

ITN  |  September 2, 2009

Commentary: Pantechniki v. Albania decision offers pragmatic approach to interpreting fork-in-the-road clauses

By Fiona Marshall 2 September 2009 The recent decision in Pantechniki v. Albania that the investor’s claim was partially barred because of its earlier court proceedings appears to be the only award in the public domain in which a tribunal has held a fork-in-the-road clause to have been triggered by an investor’s prior court proceedings. […]

ITN  |  September 1, 2009

United States Trade Representative and State Department hold Public Hearing and Solicit Written Comments in US Model BIT Review

By Elizabeth Whitsitt 2 September 2009 Last updated five years ago, the United States’ Model Bilateral Investment Treaty (BIT) is currently under review by the US Administration to ensure that it is consistent with the public interest and the overall U.S. economic agenda. As previously reported in the June 2009 edition of ITN*, an investment […]

ITN  |  August 31, 2009

Recently Published: Rethinking Foreign Investment for Sustainable Development: Lessons from Latin America

Recently Published:“Rethinking Foreign Investment for Sustainable Development: Lessons from Latin America”, Edited by Kevin P. Gallagher and Daniel Chudnovsky, with a Foreword by José Antonio Ocampo, Anthem Press February 2009, 315 pages A series of essays published in book form provides a critique of foreign investment in Latin America. “Rethinking Foreign Investment for Sustainable Development: […]

ITN  |  August 31, 2009

El Salvador government considers ban on mining as permit freeze leads to CAFTA arbitration

By Fernando Cabrera Diaz 2 September 2009 El Salvador’s ruling FMLN party is considering a ban on precious metal mining in response to public opposition to perceived environmental degradation.  The government of El Salvador has not issued mining permits for two years, and as a result is now facing two arbitration claims before the International […]

ITN  |  August 31, 2009

Tribunal dismisses claim by Europe Cement against Turkey; Claimant ordered to bear cost of the arbitration

By Damon Vis-Dunbar 2 September 2009 An ICSID tribunal has rendered a decision after finding itself in the unusual position of facing requests from both the Claimant and Respondent for a claim to be dismissed for lack of jurisdiction. In its ruling* dated 13 August 2009, the Tribunal declined jurisdiction, albeit on a basis aligned […]

ITN  |  August 31, 2009

Claim by Corn Products International results in a sour result for Mexico and its sweetener industry

By Elizabeth Whitsitt 2 September 2009 The United Mexican States has suffered yet another setback in its long and protracted dispute with the United States of America over the sugar trade and the Mexican sweetener industry. As noted in the May 2009 edition of ITN*, a NAFTA tribunal found Mexico liable to Corn Products International […]

ITN  |  August 28, 2009

Pantechniki S.A. Contractors & Engineers v. The Republic of Albania: Fork-in-the-road provision partially bars claim by Greek investor

By Damon Vis-Dunbar 2 September 2009 A Greek company’s decision to litigate in Albania’s domestic courts has prevented it from arbitrating a similar claim under the Albania-Greece bilateral investment treaty. The Claimant, Pantechniki S.A. Contractors & Engineers, sought to recoup losses sustained during the wide-spread civil strife that shook Albania in 1997 when some two-thirds […]

ITN  |  August 28, 2009

Ecuador prepares for life after ICSID, while debate continues over effect of its exit from the Centre

By Fernando Cabrera Diaz 2 September 2009 Ecuador’s announcement in July that it was denouncing the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention) has prompted renewed debate on the legal effects of the decision with respect to settling disputes under the auspices of the ICSID arbitration […]

ITN July 2009

ITN July 2009 In this issue: Glamis Gold Ltd. v. United States of America: Tribunal sets a high bar for establishing breach of “Fair and Equitable Treatment” under NAFTA; South African trade department critical of approach taken to BIT-making; arbitrators clash on question of interpretation in Hrvatska Electroprivreda d.d. v. The Republic of Slovenia; Greenpeace […]

ITN  |  July 15, 2009

Greenpeace pressures German government for transparency in Vattenfall dispute

By Damon Vis-Dunbar 15 July 2009 Arbitration proceedings between the Government of Germany and the Swedish energy utility Vattenfall should be conducted transparently, argue a coalition of non-governmental organizations. Greenpeace Germany and the World Economy, Ecology and Development organization are pressing the German Government to reverse its policy of not commenting or disclosing information related […]

ITN  |  July 15, 2009

South African trade department critical of approach taken to BIT-making

By Damon Vis-Dunbar 15 July 2009 A position paper published by the Government of South Africa takes a critical posture towards the country’s bilateral investment treaties (BITs). “Existing international investment agreements are based on a 50-year-old model that remains focused on the interests of investors from developed countries.” writes the Department of Trade and Industry […]

ITN  |  July 14, 2009

Arbitrators clash on question of interpretation in Hrvatska Electroprivreda d.d. v. The Republic of Slovenia

By Elizabeth Whitsitt 15 July 2009 On 12 June 2009 the majority of a Tribunal convened pursuant to a Request for Arbitration under the ICSID Arbitration Rules issued a partial award finding the Republic of Slovenia  liable (subject to further proceedings)* to Hrvatska Electroprivreda d.d. (HEP), the national electric company of Croatia, for the financial […]

ITN  |  July 14, 2009

Glamis Gold Ltd. v. United States of America: Tribunal sets a high bar for establishing breach of “Fair and Equitable Treatment” under NAFTA

By Elizabeth Whitsitt and Damon Vis-Dunbar 15 July 2009 A protracted dispute between the United States of America and Glamis Gold Ltd., a Canadian gold mining company, was settled in June by an arbitral tribunal constituted under Chapter 11 of NAFTA. In a unanimous 355-page decision, the Tribunal dismissed Glamis’ claims that the US expropriated […]

ITN  |  July 13, 2009

ICSID tribunal accepts Ecuador’s objections to jurisdiction in dispute with electricity firm

By Fernando Cabrera Diaz 15 July 2009 A tribunal at the International Centre for Settlement of Investment Disputes (ICSID) has accepted Ecuador’s objections to jurisdiction in an arbitration commenced by Empresa Eléctrica del Ecuador, Inc (EMELEC). In a ruling handed down on June 2 the tribunal held that the claimant Mr.  Miguel Lluco was not […]

ITN  |  July 13, 2009

Venezuela consents to arbitration in new BIT with Russia

By Fernando Cabrera Diaz 15 July 2009 A new bilateral investment treaty between Venezuela and Russia provides consent to international arbitration for settling disputes pursuant to the treaty, despite President Chavez’s criticism of international investor-to-state arbitration. Article 9 of the Russia-Venezuela BIT, published in Venezuela’s Official Gazette on 2 June 2009, allows investors to elect […]

ITN  |  July 11, 2009

Vattenfall request for arbitration

Request for Arbitration in a dispute between Vattenfall AB, Vattenfall Europe AG, Vattenfall Europe Generation AG & Co. KG (Sweden and Germany) and the Federal Republic of Germany, 30 March 2009

ITN  |  July 10, 2009

Vattenfall request for arbitration sheds new light on dispute with Germany

By Damon Vis-Dunbar 11 July 2009 Investment Treaty News (ITN) has posted the request for arbitration by the Swedish energy utility Vattenfall against the Government of Germany. In April Vattenfall brought the German government to international arbitration in a challenge to environmental restrictions imposed by the City of Hamburg on a coal-fired power plant under […]

ITN  |  July 2, 2009

Award: Saipem v. Bangladesh

SAIPEM S.p.A. v. THE PEOPLE’S REPUBLIC OF BANGLADESH (ICSID Case No. ARB/05/7)

ITN June 2009

ITN June 2009 In this issue: US forestry company and Canada dispute British Columbia logging regulations; Ecuador defies provisional measures in dispute with French oil company; Ecuador continues exit from ICSID; Suspension extended in Piero Foresti, Laura de Carli and others v. Republic of South Africa; NGOs claim the Philippine-Japan free trade agreement is unconstitutional; […]

ITN  |  June 8, 2009

Norway shelves its draft model bilateral investment treaty

By Damon Vis-Dunbar 8 June 2009 Norway has abandoned a draft model bilateral investment treaty (BIT), following public input that was largely critical. The draft text of the model BIT, released to the public in December 2007, features a number of innovations over previous Norwegian BITs, including transparent investor-state dispute settlement procedures, the requirement to […]

ITN  |  June 8, 2009

Waguih Elie George Siag and Clorinda Vecchi v. Arab Republic of Egypt: A Question of Nationality?

By Elizabeth Whitsitt 8 June 2009 On 1 June 2009 an ICSID tribunal found the Arab Republic of Egypt liable to Mr. Waguih Elie George Siag and Mrs. Clorinda Vecchi for damages totaling more than US$74 million plus interest after finding that Egypt violated numerous provisions of the Italy-Egypt bilateral investment treaty. The claimants in […]

ITN  |  June 5, 2009

US forestry company and Canada dispute British Columbia logging regulations

By Elizabeth Whitsitt 8 June 2009 Oral hearings were held in May over a claim by an American forestry and land management company against the Government of Canada for damages of US$25 million for alleged breaches of NAFTA Chapter 11. At the heart of Merrill & Ring’s complaint is a complex regulatory regime in Canada […]

ITN  |  June 5, 2009

Recently Published: A Thirst For Distant Lands: foreign investment in agricultural land and water

Recently Published: A Thirst For Distant Lands: foreign investment in agricultural land and water http://www.iisd.org/pdf/2009/thirst_for_distant_lands.pdf A new paper published by the International Institute for Sustainable Development (IISD), and authored by Howard Mann and Carin Smaller, analyzes current trends in the expansion of foreign investment in agriculture. The paper highlights the causes, mechanisms and growth of […]

ITN  |  June 5, 2009

In brief: Suspension extended in Piero Foresti, Laura de Carli and others v. Republic of South Africa

By Damon Vis-Dunbar 8 June 2009 European claimants and the government of South Africa have agreed to extend the suspension of their ICSID arbitration. The high-profile case was suspended at the end of March for two months, as the parties seek to resolve the dispute. The suspension is now due to run until June 19th. […]

ITN  |  June 5, 2009

NGOs claim the Philippine-Japan free trade agreement is unconstitutional

By Damon Vis-Dunbar 8 June 2009 A petition lodged with the Philippine Supreme Court by non-governmental organizations (NGOs) argues that the investment chapter of the Japan-Philippines Economic Partnership Agreement (JPEPA) violates the Philippine constitution. The Japan-Philippines EPA—a comprehensive trade and investment agreement—grants Japanese the right to establish investments in sectors like public utilities, education, mass […]

ITN  |  June 5, 2009

Ecuador continues exit from ICSID

By Fernando Carbrera Diaz 8 June 2009 Ecuadorian president Rafael Correa announced on May 30 that his country would be denouncing the International Centre for Settlement of Investment Disputes (ICSID), calling the World Bank’s arbitration facility an atrocity and claiming that his government was working on a regional alternative involving the South American Union (UNASUR). […]

ITN  |  June 5, 2009

Ecuador defies provisional measures in dispute with French oil company

By Damon Vis-Dunbar 8 June 2009 An ICSID tribunal authorized provisional measures on May 8th in an effort to stop the Government of Ecuador from seizing assets belong to the French oil company Perenco. Nonetheless, the state-owned Petroecuador attempted a week later to auction 1.4 million barrels of oil confiscated from Perenco, although no bidders […]

ITN  |  June 5, 2009

United States reviews its model bilateral investment treaty

By Damon Vis-Dunbar 5 June 2009 The United States has embarked on a review of its model bilateral investment treaty (BIT). Last updated in 2004, the US closely adheres to the model in its BIT negotiations with other countries. The BIT review follows campaign pledges by President Barack Obama, in which he committed to “ensure […]

ITN  |  May 11, 2009

Tribunal rechaza Alegato de Contramedidas en laudo recientemente publicado en el caso Corn Products International Inc. c. Los Estados Unidos Mexicanos

Por Elizabeth Whitsitt 28 de Abril, 2009 En un laudo del CIADI recientemente publicado, un tribunal declaró culpable a México por violar el Capítulo 11 del TLCAN ante la empresa americana, Corn Products International Inc. (CPI) y su subsidiaria mexicana de su total posesión. Si bien la decisión del 15 de enero de 2008 no […]

ITN  |  May 11, 2009

Grupo de transportistas mexicanos lanza diferencia contra EUA bajo el Capítulo 11 del TLCAN sobre prohibición de transporte terrestre

Por Fernando Cabrera Diaz 28 de Abril, 2009 El grupo industrial de transportistas mexicanos, CANACAR, ha iniciado un arbitraje bajo el Capítulo 11 contra Estados Unidos, alegando que EUA violó sus compromisos del TLCAN al prohibir a las empresas transportistas mexicanas operar libremente dentro de sus fronteras. La diferencia en torno al servicio de transporte […]

ITN  |  May 11, 2009

¿Derribando el TLCAN?

Por Howard Mann, Asesor Senior en Derecho Internacional del Instituto Internacional de Desarrollo Sostenible 2 de Mayo 2009 El 31 de marzo de 2009 Dow AgroSciences LLC, subsidiaria de la Empresa Química Dow de EUA, inició un arbitraje bajo el Capítulo 11 del TLCAN contra Canadá debido a la prohibición de productos químicos del césped […]

ITN May 2009

ITN May 2009 In this issue: Malaysian Historical Salvors jurisdictional award annulled; Tribunal disqualifies claim by Phoenix Action against the Czech Republic; Tribunal rejects countermeasures defense in recently published Corn Products International Inc. v. the United Mexican States award; Mexican truckers group launches NAFTA Chapter 11 dispute against the U.S. over trucking ban; Tribunal orders […]