ITN

ITN  |  May 3, 2009

DOWning NAFTA?

By Howard Mann, Senior International Legal Advisor to the International Institute for Sustainable Development 2 May 2009 On 31 March 2009 Dow AgroSciences LLC, a subsidiary of the U.S. Dow Chemical Company, initiated its NAFTA Chapter 11 arbitration against Canada due to the banning of cosmetic lawn chemicals in the province of Quebec. This is […]

ITN  |  April 30, 2009

Do Bilateral Investment Treaties Lead to More Foreign Investment?

By Damon Vis-Dunbar and Henrique Suzy Nikiema 30 April 2009 The global network of over 2600 bilateral investment treaties (BITs) has been built on the basis of promoting foreign direct investment (FDI), and yet, after a decade of research, whether in fact BITs lead to an increase in FDI flows is a matter of debate. There […]

ITN  |  April 29, 2009

IISD Announcement: Nathalie Bernasconi joins IISD’s investment program

The International Institute for Sustainable Development (IISD) is pleased to announce that Nathalie Bernasconi, a Swiss-based international lawyer with an extensive background in trade and investment law, has joined the IISD’s program on investment. Ms. Bernasconi will take over the management of IISD’s Investment for Sustainable Development program.  The program has been managed since its inception […]

ITN  |  April 29, 2009

Mexican truckers group launches NAFTA Chapter 11 dispute against the U.S. over trucking ban

By Fernando Cabrera Diaz 28 April 2009 The Mexican trucking industry group CANACAR has initiated Chapter 11 arbitration against the United States, alleging that the U.S. has violated its NAFTA commitments by barring Mexican trucking companies from operating freely within its borders. The cross-border trucking services dispute between Mexico and the United States originated in […]

ITN  |  April 28, 2009

Tribunal rejects the Defense of Countermeasures in recently published Corn Products International Inc. v. The United Mexican States award

By Elizabeth Whitsitt 28 April 2009 In a recently published ICSID award, a tribunal found Mexico liable to an American company, Corn Products International Inc. (CPI) and its wholly-owned Mexican subsidiary, Corn Products Ingredientes (CPIng) for violating NAFTA Chapter 11.  While the 15 January 2008 decision does not address the extent of Mexico’s liabilities, it […]

ITN  |  April 23, 2009

Malaysian Historical Salvors jurisdictional award annulled; committee split on question of economic development as criteria of ICSID investments

By Damon Vis-Dunbar 23 April 2009 The members of an ICSID committee hearing an annulment request in Malaysian Historical Salvors v. the Government of Malaysia have come to starkly different conclusions on whether a foreign investment must contribute to the economic development of the host state in order to fall within the ambit of ICSID […]

ITN  |  April 20, 2009

Tribunal disqualifies "abusive" claim by Phoenix Action against the Czech Republic

By Damon Vis-Dunbar 20 April 2009 A three-member tribunal has disqualified a claim by the Israeli-based Phoenix Action LTD, concluding that its purchase of two Czech companies was solely a pretext for exploiting the Israel-Czech Republic bilateral investment treaty. The jurisdictional award rendered on 15 April 2009 charges Phoenix Action with “an abuse of the […]

ITN Newsletter April 2009

ITN April 2009 In this issue: ICSID tribunal dismisses RSM Production Corporation’s claim against Grenada; CIT Group settles with Argentina; An interview with the former Attorney General of Pakistan, Makhdoom Ali Khan; European miners and South Africa suspend proceedings; Argentina ordered to place US$75 million in escrow pending annulment decision on Sempra award; Deutsche Bank […]

ITN  |  April 3, 2009

Deutsche Bank targets Sri Lanka with a BIT claim connected to a hedging contract

By Damon Vis-Dunbar 3 April 2009 A dispute related to oil derivatives entered into by Sri Lanka’s state-run petroleum utility has led at least one foreign bank to file arbitration proceedings against the Government of Sri Lanka. The state-run Ceylon Petroleum Corporation (CPC) entered into hedging contracts with a number of foreign and local banks […]

ITN  |  April 2, 2009

European miners and South Africa suspend proceedings

By Damon Vis-Dunbar 2 April 2009 (Note: a correction has been made to this article. An explanation is posted below). A group of European’s with a stake in South Africa’s granite-quarrying sector and the Government of South Africa have agreed to suspend arbitration proceedings* for two months. The claimants—several Italians and a Luxembourg corporation—allege that […]

ITN  |  March 30, 2009

CIT Group settles with Argentina

By Damon Vis-Dunbar 30 March 2009 The American finance company CIT Group has reached a settlement with Argentina, bringing to close ICSID arbitration proceedings which began in 2003. CIT Group had been seeking some US$124 million for alleged violations of the US-Argentina bilateral investment treaty, in one of the many disputes that arose with foreign […]

ITN  |  March 27, 2009

Recently published: The Effect of Treaties on Foreign Direct Investment: Bilateral Investment Treaties, Double Taxation Treaties and Investment Flows

The Effect of Treaties on Foreign Direct Investment: Bilateral Investment Treaties, Double Taxation Treaties and Investment Flows (Oxford University Press, 2009), edited by Karl P. Sauvant and Lisa E. Sachs. In recent years, the treaties and strategies promoting foreign direct investment (FDI) have changed dramatically. In particular, countries have liberalized their FDI laws and have […]

ITN  |  March 27, 2009

Tribunal deniega alegato de necesidad en laudo recientemente publicado: National Grid p.l.c. c. República Argentina

Por Elizabeth Whitsitt 2 de Marzo, 2009 En un laudo recientemente publicado, un tribunal constituido conforme a una solicitud de arbitraje bajo las reglas de arbitraje de la Comisión de Naciones Unidas para el Derecho Mercantil Internacional (CNUDMI) encontró culpable a la República Argentina por los daños infringidos a National Grid p.l.c. por un total […]

ITN  |  March 27, 2009

Meg Kinnear electa como Secretaria General del CIADI

Por Damon Vis-Dunbar 3 de marzo 2009 Una ciudadana canadiense fue electa como la nueva secretaria del Centro Internacional de Arreglo de Diferencias Relativas a Inversiones (CIADI) del Banco Mundial, la sede de alto perfil que atiende arbitrajes entre inversor-estado. Meg Kinnear, quien ha trabajado como abogada para el Gobierno canadiense desde 1984, dejará su […]

ITN  |  March 23, 2009

South African court judgment bolsters expropriation charge over Black Economic Empowerment legislation in the mining sector

By Damon Vis-Dunbar 23 March 2009 A South African judicial ruling has opened the door for two plaintiffs to seek compensation for alleged expropriation of their mineral rights, in a case that echoes the complaints made by European investors in a pending international arbitration against South Africa under bilateral investment treaties. The judgment* comes in response […]

ITN  |  March 16, 2009

Argentina ordered to place US$75 million in escrow pending annulment decision on Sempra award

By Fernando Cabrera Diaz 16 March 2009 An ad-hoc committee formed under the rules of the International Centre for Settlement of Investment Disputes (ICSID) has ordered Argentina to put up US$75 million in escrow as a condition of a continued stay in the enforcement of an award. Under ICSID rules a party seeking the annulment […]

ITN  |  March 16, 2009

Reflections on Pakistan’s investment-treaty program after 50 years: an interview with the former Attorney General of Pakistan, Makhdoom Ali Khan

By Lauge Skovgaard Poulsen and Damon Vis-Dunbar 16 March 2009 Pakistan inked the first ever bilateral investment treaty (BIT) with the government of West Germany 50 years ago, before going on to accumulate one of the largest portfolios of BITs held by a developing country: some 47 in total, 35 of which were signed in […]

ITN  |  March 5, 2009

TLCAN quince años después: Logros, fracasos y prospectos futuros del Capítulo 11

Por Elizabeth Whitsitt 16 de Febrero 2009 Hace quince años entró en vigencia el Tratado de Libre Comercio de America del Norte (TLCAN) y se convirtió en el primer tratado de comercio regional entre un país en desarrollo (México) y dos naciones desarrolladas (Canadá y los Estados Unidos de Norteamérica). Si bien surgieron un número […]

ITN  |  March 5, 2009

Recently Published: Regional Trade Agreements: Law, Policy and Practice

4 March 2009 Recently Published Regional Trade Agreements: Law, Policy and Practice, By David A. Gantz, Carolina Academic Press, 2009.  This volume is designed to introduce the reader to the world of RTAs, for general understanding of the place of RTAs in the global trading system, appreciation of the context and legal content of particular RTAs, and […]

ITN  |  March 5, 2009

Letter to the Editor: ICSID elects new Secretary-General

4 March 2009 Dear Sir, The lead article in the March 2009 issue of ITN regarding the election of Ms. Kinnear as ICSID Secretary-General is couched in unfortunate prose.  The author seems to advocate a political role for the incoming Secretary-General. Indeed, the article states: “In light of the attention ICSID receives, the role of the […]

ITN  |  March 4, 2009

European Court of Justice rules that certain Swedish and Austrian BITs are incompatible with the EC Treaty

The European Court of Justice (ECJ) has ruled that certain clauses in Sweden and Austria’s bilateral investment treaties are incompatible with the European Community (EC) Treaty.

ITN  |  March 3, 2009

Recently Published: Law and Practice of Investment Treaties

3 March 2009 Recently PublishedLaw and Practice of Investment Treaties: Standards and Treatment, By Andrew Newcombe and Lluís Paradell, Kluwer Law International, 2009. A new book on international investment law published by Kluwer Law International aims to provide a “a systematic, comprehensive and detailed statement of the law, along with applicable principles and policies …”  […]

ITN  |  March 3, 2009

Meg Kinnear elected as Secretary-General of ICSID

By Damon Vis-Dunbar  3 March 2009 A Canadian national has been elected as the new Secretary-General of the World Bank’s International Centre for Settlement of Investment Disputes (ICSID), the high-profile facility for investor-state arbitrations.  Meg Kinnear, who has worked as a lawyer for the Canadian government since 1984, will leave her post as Director General […]

ITN  |  February 27, 2009

Canadian First Nations Chief intervenes in NAFTA Chapter 11 tobacco dispute

By Damon Vis-Dunbar 27 February 2009 The head of the Canadian Assembly of First Nations Peoples has voiced his support for a group of Canadian investors in a tobacco company who are suing the U.S. government for alleged violations of NAFTA Chapter 11. As ITN reported in January, the claimants – the tobacco company Grand […]

ITN  |  February 23, 2009

ICSID registers claim by Spanish investor against Argentina over airline dispute

By Fernando Cabrera Diaz 20 February 2009 The Spanish investor Grupo Marsans is behind a claim against Argentina registered by the International Centre for Settlement of Investment Disputes on 30 January 2009. A spokesperson for the Madrid-based Grupo Marsans, Angel Del Rio, said his company had launched those proceedings through a holding company, Teinver S.A, […]

ITN  |  February 17, 2009

NAFTA fifteen years later: the successes, failures and future prospects of Chapter 11

By Elizabeth Whitsitt 16 February 2009 Fifteen years ago the North American Free Trade Agreement (NAFTA) entered into force and became the first regional trade agreement between a developing country (Mexico) and two developed nations (Canada and the United States of America).  While a number of criticisms and controversies have arisen with respect to different […]

ITN  |  February 10, 2009

EU Member States reject the call to terminate intra-EU bilateral investment treaties

By Damon Vis-Dunbar 10 February 2009 The majority of European Union Member States want to maintain the network of bilateral investment treaties (BITs) that exist between themselves, despite concerns by the European Commission that these treaties have been superseded by European Community law, according to a memo by the EU’s Economic and Financial Committee (EFC). […]

ITN  |  February 6, 2009

U.S. academics urge the Obama administration to improve the international investment regime

By Damon Vis-Dunbar 6 February 2009 Faculty at Columbia University in New York have called on U.S. President Barack Obama’s administration to address “imperfections” in the international legal regime that governs foreign investment. In a letter to the President, the academics write: “While the current international investment regime has been heralded as a great success, […]

ITN  |  February 4, 2009

Bolivian voters approve new constitution as government continues to nationalize oil assets

By Fernando Cabrera Diaz 4 February 2009 Bolivian President Evo Morales has claimed victory in the 25 January 2009 national referendum on a new constitution for the Andean nation.  The constitution passed just days after the Bolivian leader announced his government was finally taking control of the Chaco Petroleum Company, as part of the ongoing […]

ITN  |  January 29, 2009

Parties file memorials in long-running NAFTA dispute over U.S. tobacco settlements; Canada intervenes with opinion on customary international law related to aboriginal rights

By Fernando Cabrera and Damon Vis-Dunbar 29 January 2009 The Canadian tobacco manufacturer Grand River Enterprises Six Nations and the United State have filed memorials in a long-running NAFTA Chapter 11 dispute.  The arbitration proceedings, which began in April of 2004, have been delayed several times due to challenges to jurisdiction and to one of […]

ITN  |  January 22, 2009

The United Kingdom tight-lipped over dispute with an Indian investor

By Damon Vis-Dunbar 22 January 2009 The United Kingdom has formally declined to release a notice of arbitration delivered by an Indian citizen under the UK-India bilateral investment treaty, explaining that it would likely “prejudice relations between the United Kingdom and an international organisation; UNCITRAL.” UNCITRAL is a United Nations body responsible for international business […]

ITN  |  January 20, 2009

Tribunal refuses to clarify decision on jurisdiction in Railroad Development Corporation v. Republic of Guatemala

By Damon Vis-Dunbar 20 January 2009 The tribunal hearing a dispute between the Railroad Development Corporation (RDC) and Guatemala under the Dominican Republic – Central America – United States Free Trade Agreement (DR-CAFTA) has declined to clarify its 17 November 2008 decision on jurisdiction, following a petition by Guatemala. Guatemala had contested the tribunal’s jurisdiction […]

ITN  |  January 16, 2009

Continental Casualty Company moves to annul award favourable to Argentina

By Damon Vis-Dunbar 16 January 2009 The Illinois-based Continental Casualty Company has moved to annul an ICSID award that was largely in favour of the Republic of Argentina. In a 5 September 2008 ruling, Continental Casualty was awarded US$2.8 million, a small part of the US$112 million that the firm claimed from Argentina after its […]

ITN  |  January 15, 2009

Canadian pharmaceutical company alleges denial of justice in claim against the United States

By Damon Vis-Dunbar 15 January 2009 A Canadian pharmaceutical company delivered a notice of arbitration to the United States government in December 2008 under NAFTA’s Chapter 11 on investment. The US$8 million claim is rooted in the complicated legislation that governs how generic medications can be introduced to the U.S. market. Apotex Inc., which claims […]

ITN  |  January 12, 2009

Argentina toma la ofensiva ya que Siemens se declara culpable de cargos de corrupción

Por Damon Vis-Dunbar 23 de Diciembre de 2008 Argentina ha rechazado el pedido de Siemens de suspender el procedimiento del Centro Internacional de Arreglo de Diferencias Relativas a Inversiones (CIADI) donde un comité está considerando la solicitud de Argentina de revisar un laudo dictado en 2007, después de que la firma alemana asumiera que había […]

ITN  |  January 12, 2009

Perú gana demanda multimillonaria del CIADI sobre un acuerdo de estabilización presentada por una firma americana de energía

Por Fernando Cabrera Díaz 23 de Diciembre de 2008 La República de Perú se ha defendido con éxito en contra de una demanda iniciada por la firma Aguaytia Energy LLC (AEL) con sede en Delaware. AEL ha reclamado US$142 millones en compensación por lo que según alega fue la violación de un acuerdo de estabilización […]

ITN  |  January 9, 2009

Tribunal pierces the corporate veil in jurisdictional decision involving Argentina

By Damon Vis-Dunbar 9 January 2009 Two out of three members of an ICSID tribunal have declined jurisdiction in a claim brought by TSA Spectrum de Argentina S.A. (TSA) against the Argentine Republic under the Netherlands-Argentina bilateral investment treaty, having determined that TSA is not covered by the treaty because it is owned by an […]

ITN  |  December 23, 2008

Argentina takes the offensive as Siemens pleads guilty to corruption charges

By Damon Vis-Dunbar 23 December 2008 Argentina has refused calls by Siemens to suspend proceedings at the International Centre for the Settlement of Investment Disputes (ICSID) in which a committee is considering Argentina’s request to revise a 2007 award, following the admission that the firm’s Argentinean subsidiary paid government officials in order to obtain a lucrative […]

ITN  |  December 15, 2008

Se Debaten Méritos de Arbitraje entre Inversor-Estado en Seminario de Arbitraje Internacional auspiciado por Fiscal General ecuatoriano

Por Fernando Cabrera Díaz 9 de Diciembre, 2008 El 1-2 de diciembre Noticias sobre Tratados de Inversión asistió a un seminario de dos días sobre arbitraje internacional en Quito, Ecuador, auspiciado por la Procuraduría General de Ecuador. El seminario se enfocó en el arbitraje internacional de inversión y su relación con la soberanía estatal. Se […]

ITN  |  December 12, 2008

El Salvador warned of CAFTA-DR lawsuit by mining company

By Damon Vis-Dunbar 12 December 2008 A Canadian mining company and its American subsidiary have threatened the government of El Salvador with a lawsuit after it failed to receive regulatory approval to begin digging for gold and silver in an area some 65 km from San Salvador. The proposed mine has drawn intense opposition from […]

ITN  |  December 10, 2008

re: Investment Arbitration in Brazil: Yes or No?

As an arbitrator and one who does not have any connection with the Brazilian legal system, I  can more particularly identify with the views of Weiler and de Oliveira. I can understand the confidence that Brazilians may have in their own courts when faced with the issue of resolving international investment disputes and the question […]

ITN  |  December 9, 2008

Merits of investor-state arbitration debated at international arbitration seminar hosted by Ecuador’s Attorney General

By Fernando Cabrera Diaz 9 December 2008 On 1-2 December Investment Treaty News attended a two-day seminar on international arbitration in Quito, Ecuador, hosted by Ecuador’s Attorney General’s Office. The seminar focused on international investment arbitration and its relation to state sovereignty. Opinions from different sides of the debate were voiced, including from Ecuadorean government […]

ITN  |  December 8, 2008

Arbitrajes de Inversión en Brasil: ¿Si o No?

Por Elizabeth Whitsitt y Damon Vis-Dunbar 30 de Noviembre de 2008 En 1991, Brasil inició uno de los programas de privatización más grandes del mundo, vendiendo más de US$100 mil millones en activos. Diecisiete años más tarde, y con un Producto Interno Bruto (PIB) que califica como número diez en el mundo, Brasil es un […]

ITN  |  December 8, 2008

Objeción de Guatemala a jurisdicción de tribunal rechazada en arbitraje del TLCAC-RD

Por Damon Vis-Dunbar 26 de Noviembre 2008 El primer arbitraje de inversión a ser iniciado bajo el Tratado de Libre Comercio entre la República Dominicana – América Central – Estados Unidos (TLCAC-RD) sigue avanzando después de que el Tribunal rechazara en noviembre una objeción a su jurisdicción presentada por Guatemala. Railroad Development Corporation (RDC), la […]

ITN  |  November 30, 2008

Argentina moves to expropriate airline under threat of US$1 Billion arbitration claim

By Fernando Cabrera Diaz 30 November 2008 The government of Argentina is driving ahead with its plan to expropriate the country’s largest airline from its Spanish owners in the face of a threatened US$1 billion arbitration claim. The Madrid-based Grupo Marsans had agreed to sell the troubled Aerolineas Argentinas to the government in July, but […]

ITN  |  November 28, 2008

Indian lawyer pursues claim against the United Kingdom under the India-UK BIT

By Damon Vis-Dunbar 28 November 2008 An English court case reveals that an Indian citizen is quietly pursuing an investment-treaty claim against the United Kingdom under the India-UK bilateral investment treaty. Ashok Sancheti, a London-based lawyer of Indian nationality, brought the UK to arbitration in 2006 under the 1995 BIT. This is the only pending investment-treaty […]

ITN  |  November 27, 2008

Ecuador’s Office of the Attorney General hosts International Arbitration seminar in Quito, 1-2 December

The government of Ecuador will be hosting a seminar on International Arbitration and Administrative Law from 1-2 December 2008 in Quito.  The seminar, which is intended to help build capacity within Ecuador’s in-house legal team, will cover a variety of topics, including the impact of international investment treaties on state regulatory authorities, International Chamber of […]

ITN  |  November 26, 2008

Guatemala’s objection to jurisdiction dismissed in DR-CAFTA arbitration

By Damon Vis-Dunbar 26 November 2008 The first investment arbitration to be launched under the Dominican Republic – Central America – United States Free Trade Agreement (DR-CAFTA) is moving forward after the Tribunal dismissed Guatemala’s objection to jurisdiction in November. The Railroad Development Corporation (RDC), a U.S. company that won a public bid through its […]

ITN  |  November 21, 2008

Report says Tanzania is signing bad deals with foreign mining companies

By Damon Vis-Dunbar 21 November 2008 Tanzania is losing large amounts of money from foreign investment in the mining sector due to low royalty rates and generous tax exemptions, while contracts with so-called stabilization clauses have locked the government into this tax regime for up to 50 years,  says a report published by a consortium […]