FET

Judgment C-252 of 2019 of the Constitutional Court of Colombia: Change of precedent on the control of BITs

Judgment C-252 of the Constitutional Court of Colombia,[1] on the constitutionality of the Colombia–France BIT,[2] has aroused interest[3] for being the response of the constitutional judge to the way in which foreign investment protection clauses are incorporated into domestic law.

Awards  |  September 19, 2019

Spain held liable for breach of FET under the ECT for frustrating legitimate expectations of 9REN, a Luxembourg-based renewable energy investor

9REN Holding S.À.R.L. v. The Kingdom of Spain, ICSID Case No. ARB/15/15

Awards  |  September 19, 2019

Spain is ordered to pay damages of EUR 290.6 million in NextEra renewable energy case

NextEra Energy Global Holdings B.V and NextEra Energy Spain Holdings B.V v. Kingdom of Spain, ICSID Case No. ARB/14/11

Awards  |  September 19, 2019

Jurisdiction declined in case against Uruguay as ICSID tribunal concludes that American company lacked ownership or control over the investment

Italba Corporation v. Oriental Republic of Uruguay, ICSID Case No. ARB/16/9

Awards  |  September 19, 2019

In yet another solar energy incentives case against Italy, ECT tribunal applying proportionality test finds breach of legitimate expectations

CEF Energia B.V. v. The Italian Republic, SCC Arbitration V (2015/158)

Investor Due Diligence and the Energy Charter Treaty

The Energy Charter Treaty modernization negotiations are due to begin later this year and a set of topics for parties to consider has already been announced. This piece examines the prospects for updating the ECT’s existing formulation of FET and analyzes how this standard has been interpreted in past arbitrations involving renewable energy disputes. The author argues in favour of including a requirement of investor due diligence as an attempt to help ensure that investors anticipate possible risks that may emerge from changes to a state’s regulatory framework.

News  |  June 27, 2019

EU Commission proposes negotiating directives for ECT modernization

The EC released on May 14 a set of draft negotiating directives setting out its proposed approach in “modernizing” the Energy Charter Treaty (ECT).

ICSID tribunal finds Spain breached ECT obligations by failing to provide a reasonable rate of return

RREEF INFRASTRUCTURE (G.P.) LIMITED AND RREEF PAN-EUROPEAN INFRASTRUCTURE TWO LUX S.A R.L. V. KINGDOM OF SPAIN, ICSID CASE NO. ARB/13/30

India found in breach of BIT with Germany by UNCITRAL tribunal in respect of agreement for lease of electromagnetic spectrum

DEUTSCHE TELEKOM AG V. THE REPUBLIC OF INDIA, PCA CASE NO. 2014-10

ICSID tribunal constituted by virtue of an MFN clause holds Turkmenistan liable for FET breach for requiring investors to produce “smeta,” a cost estimate required by Turkmen law

GARANTI KOZA LLP V. TURKMENISTAN, ICSID CASE NO. ARB/11/20

ITN  |  October 18, 2018

Biwater v. Tanzania

Biwater Gauff (Tanzania) Ltd. v. United Republic of Tanzania, ICSID Case No. ARB/05/22 (Originally published in 2011 in International Investment Law and Sustainable Development: Key cases from 2000–2010; republished on this website on October 18, 2018. Read more here.) Award available at https://www.italaw.com/sites/default/files/case-documents/ita0095.pdf Keywords Amicus curiae, causation, damages, definition of “investment,” expropriation, fair and equitable treatment, jurisdiction, […]

ITN  |  October 18, 2018

CME v. Czech Republic, Lauder v. Czech Republic

CME Czech Republic B.V. v. Czech Republic, UNCITRAL Ronald S. Lauder v. Czech Republic, UNCITRAL (Originally published in 2011 in International Investment Law and Sustainable Development: Key cases from 2000–2010; republished on this website on October 18, 2018. Read more here.) Awards available at https://www.italaw.com/sites/default/files/case-documents/ita0180.pdf (CME), https://www.italaw.com/sites/default/files/case-documents/ita0451.pdf (Lauder) Keywords Abuse of process, actionable measures, arbitrary and discriminatory conduct, broad dispute […]

ITN  |  October 18, 2018

CMS v. Argentina

CMS Gas Transmission Co. v. Republic of Argentina, ICSID Case No. ARB/01/8 (Originally published in 2011 in International Investment Law and Sustainable Development: Key cases from 2000–2010; republished on this website on October 18, 2018. Read more here.) Decisions and award available at https://www.italaw.com/cases/288 Keywords Fair and equitable treatment, jurisdiction, minority shareholders, multiple/parallel proceedings, necessity defence, standard for […]

ITN  |  October 18, 2018

Continental Casualty v. Argentina

Continental Casualty Co. v. Republic of Argentina, ICSID Case No. ARB/03/9 (Originally published in 2011 in International Investment Law and Sustainable Development: Key cases from 2000–2010; republished on this website on October 18, 2018. Read more here.) Decisions and award available at https://www.italaw.com/cases/329 Keywords Expropriation, fair and equitable treatment, legitimate expectations, margin of appreciation, necessity defence, reference to other […]

ITN  |  October 18, 2018

Methanex v. United States

Methanex Corp. v. United States of America, UNCITRAL (Originally published in 2011 in International Investment Law and Sustainable Development: Key cases from 2000–2010; republished on this website on October 18, 2018. Read more here.) Decision and awards available at https://www.italaw.com/cases/683 Keywords Amicus curiae, corruption, environmental measures, expropriation, fair and equitable treatment/minimum international standards of treatment, legitimate expectations, like circumstances, […]

ITN  |  October 18, 2018

Vivendi v. Argentina

Compañía de Aguas del Aconquija S.A. and Vivendi Universal S.A. v. Republic of Argentina, ICSID Case No. ARB/97/3 (Originally published in 2011 in International Investment Law and Sustainable Development: Key cases from 2000–2010; republished on this website on October 18, 2018. Read more here.) Decisions and awards available at https://www.italaw.com/cases/309 Keywords Arbitrator independence, attribution, broad dispute resolution clause, contractual forum […]

ITN  |  October 18, 2018

Glamis v. United States

Glamis Gold Ltd. v. United States of America (Originally published in 2011 in International Investment Law and Sustainable Development: Key cases from 2000–2010; republished on this website on October 18, 2018. Read more here.) Award and other documents available at http://www.state.gov/s/l/c10986.htm Keywords Amicus curiae, cultural measures, environmental measures, expropriation, fair and equitable treatment/minimum international standards of treatment, legitimate […]

ITN  |  October 18, 2018

Metalclad v. Mexico

Metalclad Corp. v. United Mexican States, ICSID Case No. ARB(AF)/97/1 (Originally published in 2011 in International Investment Law and Sustainable Development: Key cases from 2000–2010; republished on this website on October 18, 2018. Read more here.) Award and judicial review decisions available at https://www.italaw.com/cases/671 Keywords Environmental measures, expropriation, fair and equitable treatment/minimum international standards of treatment, judicial review, […]

ITN  |  October 18, 2018

Philip Morris v. Uruguay

Philip Morris Brands Sàrl, Philip Morris Products S.A. and Abal Hermanos S.A. v. Oriental Republic of Uruguay, ICSID Case No. ARB/10/7 (Published in 2018 in International Investment Law and Sustainable Development: Key cases from the 2010s and on this website on October 18, 2018. Read more here.) Decision and award available at http://www.italaw.com/cases/460 Keywords Expropriation – police power […]

ITN  |  October 18, 2018

Crystallex v. Venezuela

Crystallex International Corporation v. Bolivarian Republic of Venezuela, ICSID Case No. ARB(AF)/11/2 (Published in 2018 in International Investment Law and Sustainable Development: Key cases from the 2010s and on this website on October 18, 2018. Read more here.) The award is available at https://www.italaw.com/cases/1530 Keywords Mining, fair and equitable treatment, legitimate expectations, deference, arbitrariness, methodologies to […]

ITN  |  October 18, 2018

Clayton/Bilcon v. Canada

William Ralph Clayton, William Richard Clayton, Douglas Clayton, Daniel Clayton and Bilcon of Delaware Inc. v. Government of Canada, UNCITRAL, Permanent Court of Arbitration (PCA) Case No. 2009-04 (Published in 2018 in International Investment Law and Sustainable Development: Key cases from the 2010s and on this website on October 18, 2018. Read more here.) Award available at […]

Awards  |  October 17, 2018

Spain found to have breached the Energy Charter Treaty in award by ICSID tribunal

ANTIN INFRASTRUCTURE SERVICES LUXEMBOURG S.À.R.L. AND ANTIN ENERGIA TERMOSOLAR B.V. V. THE KINGDOM OF SPAIN, ICSID CASE NO. ARB/13/31

Awards  |  October 17, 2018

Cypriot investor awarded EUR 18 million for expropriation and violation of national treatment and FET

OLIN HOLDINGS LIMITED V. STATE OF LIBYA, ICC CASE NO. 20355/MCP

UNCTAD’s 2017 High-level IIA Conference: Moving Forward on Addressing Older-Generation International Investment Agreements

Over 300 experts gathered in Geneva to take stock of the sustainable development-oriented reform of the investment treaty regime and discuss policy options for modernizing the existing stock of older-generation treaties. Participants recognized that multilateral collaboration would be key to addressing the complex IIA regime.

Review of The Political Economy of the Investment Treaty Regime

In their new book, Jonathan Bonnitcha, LaugePoulsen and Michael Waibel develop a coherent structure for policy analysis of investment treaties that should attract interest as governments review their treaty policies. It argues that investment treaties as currently applied often appear poorly tailored to address identifiable economic concerns.

Awards  |  December 21, 2017

Kazakhstan held liable for expropriation of Hourani family’s investment on second round of ICSID arbitration

Caratube International Oil Company LLP and Devincci Salah Hourani v. Republic of Kazakhstan, ICSID Case No. ARB/13/13

The 2016 Morocco–Nigeria BIT: An Important Contribution to the Reform of Investment Treaties

Two African developing countries respond to criticisms against the investment regime. The innovative treaty offers protection to foreign investors without compromising on the host state’s capacity to regulate in the public interest.

Awards  |  September 26, 2017

All claims by Isolux Infrastructure Netherlands against Spain are dismissed

Isolux Infrastructure Netherlands B.V. v. the Kingdom of Spain, SCC Case No. V2013/153

Awards  |  September 26, 2017

Argentina ordered to pay over USD320 million for unlawful expropriation in airlines case

Teinver S.A., Transportes de Cercanías S.A. and Autobuses Urbanos del Sur S.A. v. The Argentine Republic, ICSID Case No. ARB/09/1

Awards  |  September 26, 2017

Investors triumph over Spain in a claim concerning Spain’s regulatory overhaul for clean energy

Eiser Infrastructure Limited and Energía Solar Luxembourg S.à r.l. v. Kingdom of Spain, ICSID Case No. ARB/13/36

Awards  |  September 26, 2017

WNC v. Czechia: tribunal dismisses expropriation claim and determines that it has no jurisdiction over all other claims

WNC Factoring Limited v. The Czech Republic, PCA Case No. 2014-34

Another Conflict of Norms: How BEPS and International Taxation Relate to Investment Treaties

The Base Erosion and Profit Shifting (BEPS) reform project led by the OECD tackles corporate measures aimed at shifting profits to no- or low-tax destinations. But investment law can hinder the implementation of much-needed reform in international taxation.

SCC tribunal dismisses claims brought by British company and its shareholders against the Czech Republic

Anglia Auto Accessories Ltd. v. Czech Republic (SCC Case No. V 2014/181) and Ivan Peter Busta and James Peter Busta v. Czech Republic (SCC Case No. V 2015/014)

ITN  |  March 13, 2017

Awards and Decisions

ICSID tribunal dismisses claims brought against Indonesia based on forged mining licences Churchill Mining PLC and Planet Mining Pty Ltd v. Republic of Indonesia, ICSID Case No. ARB/12/14 and ICSID Case No. ARB/12/40 Inaê Siqueira de Oliveira [*] After rendering separate decisions on jurisdiction¾one for the case brought by British company Churchill Mining PLC under the United […]

NAFTA tribunal orders Canada to pay U.S. wind power developer more than CAD28 million

Windstream Energy LLC v. Government of Canada, PCA Case No. 2013-22  An arbitral tribunal under Chapter 11 of the North American Free Trade Agreement (NAFTA) has reached the award stage. Although dismissing the discrimination and indirect expropriation claims, the tribunal upheld the claim of failure to provide fair and equitable treatment (FET), and ordered Canada […]

PCA tribunal dismisses expropriation and FET claims concerning an eco-touristic venture 

Peter A. Allard v. The Government of Barbados, PCA Case No. 2012-06 On June 27, 2016, a tribunal under the auspices of the Permanent Court of Arbitration (PCA) dismissed all claims by Canadian businessman Peter A. Allard against Barbados under the Canada–Barbados bilateral investment treaty (BIT) and the Arbitration Rules of the United Nations Commission […]

India’s Joint Interpretive Statement for BITs: An Attempt to Slay the Ghosts of the Past

The Government of India has proposed a Joint Interpretative Statement to its bilateral investment treaty (BIT) partners. The statement clarifies key substantive and procedural provisions, bringing them more in line with India’s new foreign investment policy.

News  |  December 12, 2016

Brazil and India initial bilateral investment treaty (BIT); text yet to be published 

During the 10th Annual Forum of Developing Country Investment Negotiators, held in Colombo, Sri Lanka, from November 7 to 10, representatives from Brazil and India announced that they had recently initialled a bilateral investment agreement (BIT).

Awards  |  December 12, 2016

Ecuador’s levy on extraordinary oil profits at a 99% rate has breached Murphy’s legitimate expectations, decides PCA tribunal

Murphy Exploration & Production Company – International v. Republic of Ecuador, PCA Case No. 2012-16 (formerly AA 434) – Inaê Siqueira de Oliveira

News  |  August 10, 2016

India takes steps to reform its investment policy framework after approving new model BIT

India has started to send official notices to terminate bilateral investment treaties (BITs) to 57 partner countries with which it has BITs that have already expired or will expire in the near future. Moreover, to the 25 countries with which India has BITs with initial durations expiring from July 2017 onward, India has started to propose signing joint […]

Awards  |  August 10, 2016

Awards and Decisions

The long-expected final award has been rendered in the high-profile case initiated by tobacco giant Philip Morris in early 2010 against Uruguay over its tobacco control measures.

Awards  |  August 10, 2016

Philip Morris v. Uruguay: all claims dismissed; Uruguay to receive US$7 million reimbursement

Philip Morris Brands Sàrl, Philip Morris Products S.A. and Abal Hermanos S.A. v. Oriental Republic of Uruguay, ICSID Case No. ARB/10/7

Awards  |  August 10, 2016

Claimant fails to comply with three-year limitation period under CAFTA-DR

A tribunal at the International Centre for Settlement of Investment Disputes (ICSID) declared that it lacked jurisdiction in the case of Corona Materials LLC (a U.S. company) against the Dominican Republic.

Awards  |  August 10, 2016

Venezuela ordered to pay US$1.202 billion plus interest to Canadian mining company Crystallex for FET breach and expropriation

In a 273-page award dated April 4, 2016, a tribunal at the Additional Facility (AF) of the International Centre for Settlement of Investment Disputes (ICSID) ordered Venezuela to pay US$1.202 billion plus interest to Canadian company Crystallex International Corporation (Crystallex).

ICSID tribunal orders Zimbabwe to return expropriated farms

In a 318-page award issued July 28, 2015 but only published February 2016, a tribunal at the International Centre for Settlement of Investment Disputes (ICSID) ordered Zimbabwe to return farms it seized without compensation in 2005.

Awards  |  February 29, 2016

Quiborax awarded US$50 million against Bolivia, one-third of initial claim

Quiborax S.A. and Non-Metallic Minerals S.A. v. Plurinational State of Bolivia (ICSID Case No. ARB/06/2)

UNCITRAL tribunal finds Canada’s environmental assessment breached international minimum standard of treatment and national treatment standard

William Ralph Clayton, William Richard Clayton, Douglas Clayton, Daniel Clayton and Bilcon of Delaware Inc. v. Government of Canada, UNCITRAL

A Distinction Without a Difference? The Interpretation of Fair and Equitable Treatment Under Customary International Law by Investment Tribunals

Broad interpretations of the standard for fair and equitable treatment (FET) by investment tribunals have become a source of increasing controversy. In theory, linking FET to customary international law (CIL), which is formed through the “general and consistent practice of states” that they follow out of a sense of legal obligation (opinio juris), results in a standard of protection that is more deferential to the regulatory authority of governments than the “autonomous” standard. In practice, however, investment tribunals continue to construe even CIL-based FET provisions to impose broad limits on government authority by accepting, without any evidence of state practice or opinio juris, the pronouncements of previous tribunals as definitive evidence of the standard under CIL.

ITN  |  January 14, 2013

Awards and Decisions

US$1.76 billion dollar award levied against Ecuador in dispute with Occidental; tribunal split over damages   Occidental Petroleum Corporation and Occidental Exploration and Production Company v. The Republic of Ecuador, ICSID Case No. ARB/06/11 Damon Vis-Dunbar The Republic of Ecuador has been ordered to pay US$1,769,625,000 billion in damages—the largest award to be handed down […]

ITN  |  October 30, 2012

Awards and Decisions

Majority declines jurisdiction in claim against Argentina over domestic litigation requirement Daimler Financial Services AG v. Argentine Republic, ICSID Case No. ARB/05/1 Damon Vis-Dunbar A claim against Argentina by a subsidiary of the German automotive firm Daimler A.G. has failed on its merits because the claimant did not first bring the dispute to court in […]