ICC STRIVES FOR GREATER TRANSPARENCY AND EFFICIENCY IN UPDATED PRACTICE NOTE TO PARTIES AND ARBITRAL TRIBUNALS ON THE CONDUCT OF ARBITRATION UNDER THE ICC RULES

On 20 December 2018, the International Court of Arbitration of the International Chamber of Commerce (ICC) published updated guidance on the conduct of arbitration under its arbitration rules. The Note to Parties and Arbitral Tribunals on the Conduct of Arbitration under the ICC Rules of Arbitration (Note) entered into force on 1 January 2019, and represents a continuation of the ICC’s efforts to increase transparency and efficiency, and widen its range of services to users.  We consider six of the most significant updates to the Note below.

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HERBERT SMITH FREEHILLS – SMU ASIAN ARBITRATION LECTURE

Sir Christopher Greenwood: Investor-State Arbitration: Is there a Future?

This year marks the eighth edition of the Herbert Smith Freehills – SMU Asian Arbitration Lecture Series.

We are delighted that Sir Christopher Greenwood GBE, CMG, QC, will deliver the lecture on Thursday 18 October, on the topic of Investor-State Arbitration: Is There A Future? We are honoured to have Chief Justice Sundaresh Menon as Guest of Honour.

The Herbert Smith Freehills-SMU Asian Arbitration Lecture Series was established in 2010 through funding from Herbert Smith Freehills, and promotes collaborative forms of dispute resolution and access to justice. It also aims to promote Singapore as a leading centre for dispute resolution in Asia, particularly in arbitration and mediation. Each year, a distinguished arbitrator delivers the lecture, which is also published in a leading global arbitration journal.

Date:      Thursday, 18 October 2018

Time:      4:30pm – Registration

5:00pm – Lecture

Cocktail Reception to follow

Venue:   Singapore Management University

School of Law (SMU Hall 1.3, Level B1)

55 Armenian Street

Singapore 179943

Click here to register

The lecture will be a SILE accredited CPD activity.

New Zealand signs side letters with five CPTPP members to exclude compulsory investor state dispute settlement

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.

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Mixed messages to investors as India quietly terminates bilateral investment treaties with 58 countries

The Government of India says it has sent notices to terminate bilateral investment treaties (BITs) with 58 countries, including 22 EU countries.  It has been reported that many of these BITs will cease to apply to new investments from as early as April 2017. The BIT between India and The Netherlands (which had been a common route for investment into India) has already been terminated from December 2016.  Termination of the BITs would also remove protection for new investments by Indian investors into the counterparty countries. For the remaining 25 of its BITs that have not completed their initial term, and so are not ripe for termination, India has circulated a proposed joint interpretative statement to the counterparties to these BITs seeking to align the ongoing treaties with its 2015 Model BIT.  While investments made before the termination of the 58 treaties may be protected for some years under the ‘sunset’ clauses in those BITs, India’s actions send mixed messages at a time when the Indian government is making renewed efforts to attract inbound investment with its ‘Make in India’ campaign, and when outbound investment by Indian companies continues to increase into both developed and developing economies.

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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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Live webcast of hearing on jurisdiction and the merits: David Aven et al. v. Republic of Costa Rica (UNCITRAL Case No. UNCT/ 15/3) – Public Hearing

A hearing on jurisdiction and the merits in UNCITRAL Case No. UNCT.15/3, will be transmitted live in English and Spanish via internet feed from Monday, December 5, 2016 to Monday, December 12, 2016, excluding Saturday and Sunday, from 9:00 a.m. to approximately 6:00 p.m. EST. The live streaming is being made available pursuant to Article 10.21.2 and of the Dominican Republic-Central America FTA (CAFTA-DR), and section 25.2 of the Tribunal’s Procedural Order No. 1 dated September 10, 2015.

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Company vs Country: BBC documentary on investor-state dispute settlement on BBC Radio 4 tonight

After decades of governments concluding international investment agreements, reservations concerning free trade agreements (such as the TTIP, between the US and the EU) have led to unprecedented levels of public debate, focussing largely on the proposed inclusion of investor-state dispute settlement (ISDS) provisions.

Matthew Weiniger QC was interviewed for a BBC Radio 4 programme to be broadcast at 8pm tonight, titled “Company vs Country“. It will discuss the nature of investment protections and ISDS, including the high profile investor-state disputes which are relied on as evidencing the alleged threat ISDS poses to democracy.

The programme will be available here shortly after the broadcast.

For further information, please contact Matthew Weiniger QC, or your usual Herbert Smith Freehills contact.

Matthew Weiniger QC
Matthew Weiniger QC
Partner
+44 20 7466 2364

Herbert Smith Freehills hosts TTIP event in partnership with Chatham House

On Wednesday 4th March Herbert Smith Freehills hosted an event in partnership with Chatham House (the Royal Institute for International Affairs, London), seeking to explore the opposition to the TTIP and, in particular, the Investor State Dispute Settlement (ISDS) chapter within it. Chaired by HSF partner, Andrew Cannon, the panel represented a broad range of stakeholders from in-house counsel, government officials, academia and civil society, together with HSF partner, Christian Leathley. The panel explored why ISDS arouses such opposition, and whether and how it can be improved to strike a balance between investment protection and the right of governments to regulate. The panel also considered whether the TTIP and its ISDS provisions will be a blue print for future free trade agreements.

The proposed Transatlantic Trade and Investment Partnership (TTIP) free trade agreement between the EU and the US, two of the world’s largest economies, is intended to remove trade barriers, create wealth and promote investment. On 13 January, the European Commission published the results of its public consultation on the investment protection and investor-state dispute settlement (ISDS) chapter in TTIP. Of the 150,000 responses, 97 per cent were negative. Critics have stated that the ISDS proposals would allow corporates to undermine regulation by governments in fields such as environmental protection.

The event was very well attended with around 100 delegates from across a broad spectrum of sectors and backgrounds. Held under the Chatham House rule, the event opened with presentations by each of the five panellists, followed by questions from the floor. Of particular focus was whether the European Commission’s efforts to revise the substantive standards in the draft TTIP consultation text were merely “tinkering”, doing little to address the legitimacy crisis in ISDS. The panel went on to consider whether a broader shift in mind set towards investor protection was required which gave greater significance to states’ other international obligations such as Human Rights and the environment.

Andrew Cannon comments, “this event gave us a unique opportunity to draw together viewpoints from the two sides of this very current debate at the historic venue of Chatham House. The ISDS system continues to come under ever-closer scrutiny and we will continue to follow developments closely.”

A fuller report of the seminar will be posted shortly.

For further information on the TTIP please contact partners Andrew Cannon, Christian Leathley, Matthew Weiniger and Laurence Shore or your usual Herbert Smith Freehills contact.

Andrew Cannon
Andrew Cannon
Partner
+33 1 53 57 65 52
Christian Leathley
Christian Leathley
Partner
+44 20 7466 2532
Matthew Weiniger QC
Matthew Weiniger QC
Partner
+44 20 7466 2364
Laurence Shore
Laurence Shore
Partner
+1 917 542 7807

The future of investor-state arbitration

We live in interesting times for investment arbitration. There is wider public engagement with investment protection than there has ever been, prompted by the European Commission’s public consultation on the proposed Transatlantic Trade and Investment Partnership (TTIP) between the EU and the US, and the agreement in principle of the text of the Comprehensive Economic Trade Agreement (CETA) between the EU and Canada.

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