Investor-State Arbitration Tribunals

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A New Hope for the Yukos Shareholders – PCA Awards Revived by the Hague Court of Appeal

Four years ago, the Hague district court gave an unexpected twist to the dispute between Russia and shareholders of the former oil company Yukos, setting aside the 50 billion USD awards issued by an investment arbitration tribunal under the auspices of the PCA on grounds of Russia’s breach of the expropriation clause of the Energy Charter Treaty (ECT). The district court found that the arbitration clause of the ECT was not provisionally applicable to Russia and that the tribunal had wrongly assumed jurisdiction. This judgment has now been reversed by the Hague Court of Appeal (see here in Dutch), ruling that the provisional application of the ECT’s arbitration clause was not inconsistent with Russian law. The Court of Appeal also rejected Russia’s other grounds for annulment, which had not been assessed by the district court, including arguments based on the ECT’s tax carve-out, the alleged illegality of the investment, and the role of the tribunal’s assistant in drafting the awards. Provisional Application:…

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UNCITRAL and ISDS Reform: Plausible Folk Theories

  As observers of the UNCITRAL process, we watch the debates with great interest, writing about the emergence of different camps, giving perspectives on how the process fits within broader geopolitical developments, and offering potential models for moving forward. One thing that we are often struck by is how some of the field’s underlying narratives are…

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UNCITRAL and ISDS Reforms: What Makes Something Fly?

  When conducting an international negotiation, the Chair has to ask him or herself: what makes something fly? This question really has two parts. The first concerns the negotiations themselves. Once you’ve taken off and achieved a certain cruising speed and altitude, how do you keep the momentum going? Will some flight paths be smoother than…

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The Scorecard of the USMCA Protocol of Amendment

    The U.S. House of Representatives approved December 19 the United States-Mexico-Canada Agreement (USMCA) by an overwhelming margin of 385-41. The Senate is expected to do the same in mid-January. As everyone knows by now, USMCA is a revision and replacement for the 25-year-old North American Free Trade Agreement (NAFTA), a regional trade agreement…

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The Colombian Constitutional Court Judgment C-252/19: A new frontier for reform in international investment law

On 6 June 2019, the Colombian Constitutional Court announced its long-awaited decision (made public 2 July 2019) regarding the constitutionality of the 2014 Colombia – France Bilateral Investment Treaty (BIT). Using an innovative line of reasoning, the Colombian Court did not only rule on whether or not this text was constitutional. It further declared the BIT to…

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