Professional Documents
Culture Documents
International Investment
Claims
National Law School,Jodhpur
July 25, 2016
2016-- Kabir Duggal. This material may be freely copied and distributed with the prior written permission from the author.
I.
Introduction to
International Investment Arbitration
Introduction
Provisions in contracts;
Political risk insurance;
Guarantees from the Government;
Treaties (bilateral or multilateral);
(Domestic) foreign investment law.
PIL Perspective:
Agreement between states
therefore international
law applies (greater
deference for states).
Commercial Perspective:
Greater deference for the
investor who takes the risk
to invest in a developing
country.
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Deconstructing a BIT
Typically provides the parameters for protection:
Defines investor and investment
Expropriation
Fair and Equitable Treatment
Full Protection and Security
Arbitrary and Discriminatory Measures
National Treatment
Most Favored Nation
Umbrella Clause
Provides for compensation (but not necessarily damages) in the event of the
breach of the obligations.
First Principles
II.
A Few Theoretical Issues
CONSEQUENCE:
Participants
unconsciously
default to, or consciously advocate, particular
paradigms in light of their diverse backgrounds and
interests.
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III.
The Institutions
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Two Options
Institutional Arbitration
(Specialized institution intervenes
and administers the process).
Established format for the
process.
Ensures timeliness of process.
Administrative assistance.
BUT. . .
Administrative fees and
expenses.
Unrealistic deadlines.
Bureaucracy.
Ad hoc Arbitration
(No supervising institution: parties
decide questions).
Potential to be faster, cheaper
and more flexible.
Might have greater
confidentiality.
BUT. . .
Problems if you cannot agree.
Often involves some
institutional support (e.g., PCA).
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Other Rules
UNCITRAL Rules of Arbitration (ad hoc)
Originally adopted in 1976, amended in 2010
to enhance the efficiency of the Rules.
Enforced under the New York Convention
(1958).
ICC Rules of Arbitration (institutional)
Originally in 1998, amended in 2012.
The ICC Court of Arbitration helps scrutinize
the awards and assist the arbitration process.
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IV.
The Problem of Parallel Proceedings
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V.
FORK-IN-THE-ROAD & WAIVER
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FITR
Waiver
Waiver
encourages
investors to first investigate
local remedies under the
domestic
law
before
undertaking
international
arbitration.
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VI.
PRACTICE OF ICSID TRIBUNALS
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CMS v. Argentina
Pantechniki v. Albania
Claimant sought to recover losses during a civil strife in Albania
under the Albania-Greece BIT.
The Ministry of Public Works had agreed to provide compensation
but the Finance Ministry recommended bringing a case to get
compensation. Following unfavorable court decisions, Claimant
initiated ICSID arbitration under Greek-Albania BIT.
BIT states: the investor or Contracting Party concerned may
submit the dispute either to the competent court of the Contracting
Party or to an international arbitration tribunal No clear
reference that investors election would be final!
Not permitted: The Claimant chose to take this matter to the
Albanian courts. It cannot now adopt the same fundamental basis
as the foundation of a Treaty claim. Having made the election to
seise the national jurisdiction the Claimant is no longer permitted to
raise the same contention before ICSID.
(The Denial of Justice claim proceeded but was dismissed).
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Thank You
duggalkabir@gmail.com
duggalkabir@gmail.com
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