The English High Court’s decision in State A v Party B  EWHC 799 (Comm), handed down in January 2019 but only recently published, concerned the court’s dismissal of an application to extend the time for bringing a jurisdictional challenge under section 67 of the Arbitration Act 1996 in circumstances where the challenge was 959 days late (available here).
The decision found that where the delay is lengthy and the application for an extension is based on fresh evidence, an extension will only be justified by fresh evidence that is “transformational” or “seismic“. The decision illustrates the importance that the English court places on the timeliness of challenges to awards and the high threshold that must be met in order to obtain an extension.
One of the Advocates General to the Court of Justice of the European Union, Advocate General Bot, has issued an opinion confirming that the mechanism for the settlement of disputes between investors and states provided for in the Comprehensive Economic and Trade Agreement between the EU and Canada (the CETA) is compatible with European Union law.
We discuss the content of the Advocate General’s opinion on our new blog piece, published on our Public International Law blog here.
For further information please contact Andrew Cannon, Partner, Hannah Ambrose, Senior Associate, Vanessa Naish, Professional Support Consultant, Rebecca Warder, Professional Support Lawyer, or your usual Herbert Smith Freehills contact.
Members of the HSF Paris disputes team have played a key role in obtaining a successful ICSID award for Chèque Déjeuner (“CD“), the French meal voucher issuer. The claim related to tax reforms introduced by the Orban government which effectively excluded CD (and other foreign voucher-issuers) from the Hungarian market. As a result, CD commenced ICSID proceedings under the France-Hungary bilateral investment treaty (“BIT“) in December 2013, alleging that Hungary had breached its obligations in respect of expropriation and fair and equitable treatment (“FET“).
New Zealand has recently signed “side letters” to exclude compulsory Investor State Dispute Settlement (“ISDS“) with five members of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (“CPTPP“) – Brunei Darussalam, Malaysia, Peru, Viet Nam and Australia. This demonstrates the evolving approach to ISDS in the Asia Pacific region and is of particular interest both in the context of the worldwide debate about the future of ISDS, and also due to the importance of CPTPP members within the global economy.
In its recent judgment in Progas Energy Limited and ors v Pakistan , the English High Court (the Court) granted Pakistan’s request for security for their costs in defending a challenge to an investment treaty award. The Court declined Pakistan’s application for security for its unpaid costs in the arbitration awarded to them by the tribunal. The case is of particular interest because the Court considered the relevance to the applications of the fact that the Claimants were funded by a third-party funder.
Herbert Smith Freehills and BIICL Investment Treaty Forum warmly invite you to attend ‘The Future of Investment Arbitration: Have We Reached a High Water Mark?’.
|Date||Wednesday 1 November 2017|
17:30: Panel discussion followed by drinks and networking
|Venue||Exchange House, Primrose Street, London, EC2A 2EG|
Please click here to view map
|Registration ||Click here to register with the BIICL events team directly.|
Please note there are a limited number of complimentary spaces.
In this webinar, we will offer a disputes perspective on how to protect your investments from political risk in the current economic and political climate. Disputes lawyers are often brought on board when things have already gone wrong, tasked with limiting the fallout, managing a crisis or resolving a dispute formally or informally. However, we know what can go wrong and can therefore offer insight into what might have been done at the outset to reduce the chance of a dispute arising in the first place. We know what we need to build a solid claim and what would or could have made our client’s position in any dispute stronger.
In this webinar our panel will explore what we mean by “political risk” before looking at ways that risk can be mitigated. The topics our speakers will explore include:
- Looking beyond the transaction: protecting your future position whilst negotiating
- Contractual protections
- Investment structuring to benefit from investment treaties
- Political risk insurance: coverage, wordings and maximising policy response
- Steps to protect yourself when an investment turns sour
Finally, we will talk through some practical points which can really aid a client’s position if and when a dispute does arise.
Andrew Cannon, Partner, International Arbitration, Paris
Sarah McNally, Partner, Insurance Disputes, London
Iain Maxwell, Of Counsel, International Arbitration, London
To register for this event please click here.
The EU Commission (the Commission) has launched a public consultation on the multilateral reform of the investment dispute settlement system. The survey is found here and responses are due by 15 March 2017. The consultation is the next step in furtherance of the Commission's objective to develop a multilateral system for the resolution of international investment disputes and, amongst other things, seeks to explore views on its proposal to develop a permanent multilateral investment court system.
The development of the Commission's position over the last couple of years and the Commission's introduction to the consultation both suggest a determination to pursue wholesale change to the system of resolution of investor-state disputes, rather than a more nuanced approach in evaluating the perceived flaws in the current system under which investor-state disputes are largely resolved by ad hoc arbitration (often under the auspices of ICSID, part of the World Bank). However, notwithstanding its clearly stated objective, the Commission's survey also countenances in the alternative the establishment of a Multilateral Appeal Tribunal which would consider appeals from the decisions of ad hoc investment arbitration tribunals established under the current system.
The responses to the consultation will be significant in terms of the future of the Commission's objective to establish a Multilateral Investment Court. In particular, it will be crucial that a constructive and positive response is received from the third party states who are asked to partner with the Commission in developing the Multilateral Investment Court system. However, it remains to be seen whether the survey will elucidate clear responses which will assist the Commission in considering further its proposals for the future of investor-state dispute settlement: the majority of the survey questions treat as interchangeable the two different approaches (the establishment of a Multilateral Investment Court system and the establishment of a Multilateral Appeal Tribunal) and the survey does not seek responses on the development of a Multilateral Appeal Tribunal alongside reform of the current system of ad hoc arbitration. It is not clear whether this option continues to be considered by the Commission.
The issues and controversies surrounding the resolution of investor-state disputes are complex and any changes to the system pursued by the Commission would ideally be based on clearly expressed views from a range of stakeholders. It is to be hoped therefore that respondents to the survey take the opportunity offered by the Commission to clarify their responses by way of uploading a position paper.
With unprecedented growth in foreign direct investment, issues concerning substantive investment protection and the way in which investor-state disputes are resolved both now and in the future are significant for both states and investors. If you would like to discuss these issues or the Commission's consultation, please contact: Larry Shore, Partner, Dominic Roughton, Partner, Christian Leathley, Partner, Andrew Cannon, Partner, Iain Maxwell, Of Counsel, Vanessa Naish, Professional Support Consultant, Hannah Ambrose, Professional Support Consultant or your usual Herbert Smith Freehills contact.
In its decision of 3 March 2016 (I ZB 2/15), published on 11 May 2016, the German Federal Court of Justice ("BGH") announced that it would request the Court of Justice of the European Union ("CJEU") to make a preliminary ruling on the validity of arbitration agreements concluded under intra-EU bilateral investment treaties pursuant to Art. 267 TFEU. While this decision takes the underlying investor state dispute to yet another level, the BGH's request for preliminary ruling by the CJEU bears the potential of becoming a turning point in the history of investor state dispute settlement in that it forces the CJEU to rule on the relationship between EU law and international investment law.
In this video post in the “Observations on Arbitration” series, Christian Leathley provides an Introduction to the Fair and Equitable Treatment (FET) Standard in investment arbitration. Christian discusses the circumstances in which the FET standard has been applied, and the key elements of the FET standard, as developed by tribunals in investment arbitrations.