Dawood Rawat v Mauritius: Dual-national claim dismissed based on treaty context interpretation

On 6 April 2018, a Tribunal constituted under the UNCITRAL Arbitration Rules rendered an Award on Jurisdiction in the case Dawood Rawat v. The Republic of Mauritius (PCA Case 2016-20).  Following a thorough analysis of the interpretation of the 1973 Investment Protection Treaty between the Republic of France and Mauritius (the “France-Mauritius BIT” or the “Treaty”), the Tribunal denied protection of the relevant investment protection treaty to a dual national – a French-Mauritian businessman – despite the treaty was silent on its application to dual nationals.  This approach was contrary to prior investment treaty decisions, such as Serafín García Armas and other v Venezuela, in which tribunals have rejected jurisdictional objections brought by respondent states where relevant the bilateral investment treaty (“BIT”) was silent on the exclusion of dual nationals.

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Urbaser v. Argentina and Burlington v. Ecuador: Investment arbitration is not over the counterclaims yet

Two recent decisions by tribunals have advanced the body of tribunal practice considering the issue of counterclaims by respondent states in investment treaty arbitration: Burlington Resources Inc. v. Ecuador, in which the tribunal awarded damages against the investor for breach of Ecuadorian environmental law in the performance of its investment, and Urbaser SA and Consorcio de Aguas Bilbao Bizkaia v. Argentina, in which the tribunal accepted jurisdiction to hear Argentina's counterclaim asserting that the investor had violated international human rights obligations. These decisions arise in the context of conceptual challenges to the pursuit of counterclaims in investment arbitration.

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Paris Court of Appeal upholds challenge to ICC treaty award and rejects third party intervention in resisting application to set aside

The Paris Court of Appeal has upheld a challenge to an International Chamber of Commerce (ICC) investment treaty award (Cour D'Appel de Paris, Pole 1 – Chambre 1, 15 March 2016, n° 14/19164). This is the latest instalment in the long-standing dispute regarding an insurance claim for damage to a textiles factory during the civil unrest that followed the Madagascan coup of 2009.

The Paris Court of Appeal set aside the sole arbitrator's decision on the grounds that he decided the case based on arguments raised of his own initiative and on which the parties did not have the opportunity to comment (ignoring the adversarial principle applicable under French law). The appeal court also rejected an attempt by an interested third party to intervene in resisting the challenge to the award, on the basis that this would flout the contractual nature of arbitration.

This decision is a rare example of a successful challenge to an arbitral award in France. It provides a helpful reminder of the Court of Appeal's supervisory role over French-seated arbitrations and its ability to annul an award where the tribunal has exceeded the scope of its powers and duties (in particular, where the tribunal failed to comply with due process and based its conclusions on arguments not raised by the parties). The judgment also shines a light on the limitations of the ICC scrutiny process.

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New Zealand releases Trans-Pacific Partnership (TPP) text to the public

New Zealand released the full text of the TPP to the public today 5 November. The text can be found here.

We will follow up with further consideration of the investment chapter in due course.

For further information, please contact Donald Robertson, Partner, Laurence Shore, Partner, Vanessa Naish, Professional Support Consultant, Hannah Ambrose, Professional Support Consultant or your usual Herbert Smith Freehills contact.

Donald Robertson
Donald Robertson
Partner
+61 2 9225 5523
Laurence Shore
Laurence Shore
Partner
+1 917 542 7807
Vanessa Naish
Vanessa Naish
Professional Support Consultant
+44 20 7466 2112
Hannah Ambrose
Hannah Ambrose
Professional Support Consultant
+44 20 7466 7585

 

 

 

Please also tag both with TPP, Investment Treaty.

Upcoming Webinar: India Insights: the challenge of India-related dispute resolution and the post-election Investment landscape

Monday 7 July 2014 9.30am BST

It has been a time of change for the investment climate in India – driven in large part by recent and very significant changes in the political climate in India, changing attitude of the Indian courts and an increasing willingness of foreign investors to take on the Indian state.

In this webinar, our speakers will draw from their knowledge and experience to discuss their views of some of the opportunities and challenges for investors into India, and in particular the role played by Indian law, the Indian courts and the Indian arbitration system. As always, the stability and efficiency of the Indian legal regime will be critical to converting optimism and interest into investment and economic growth. Our speakers will review the current legal climate in India, recent decisions impacting on the use of courts and arbitration both in India and outside India, and best practice for parties looking to maximise protection for their inbound investment. They will also consider the recent spate of investment treaty arbitrations launched against India and what this may mean for the resolution of current and future disputes with the Indian state.

Speakers:

  • Chris Parsons, Chairman, India Practice
  • Nicholas Peacock, Partner, Head of India International Arbitration Practice
  • Kritika Venugopal, Associate
  • Vikas Mahendra, Associate

If you would like to register for this event please contact Prudence Heidemans.

A webinar is an online seminar delivered to your desktop.  On the day of the webinar you will be sent a link to login to the live event.

The webinar is recorded so you can listen again. If you are unable to listen to the live event register anyway and you will be able to listen to the recorded version when convenient.

The webinar is interactive and we welcome questions from our audience. Email your comments to the speakers on the day using the appropriate tab on the player.