International Court of Justice allows Iran claim to proceed to the merits phase but upholds jurisdictional objection on sovereign immunity

27 February, 2019

On 13 February 2019, the International Court of Justice dismissed one of the United States' jurisdictional objections to a claim by Iran, upheld another and deferred a final jurisdictional objection to the merits phase in the case concerning Certain Iranian… Read more

EU submits paper and work plan to UNCITRAL Working Group III advocating systemic reform as the only answer to concerns about investor-state dispute resolution

26 February, 2019

In advance of the next meeting of UNCITRAL Working Group III (WG III) in April 2019, the European Union and its Member States have made a submission on "Establishing a standing mechanism for the settlement of international investment disputes" (the… Read more

Third party intervention in investment arbitration: Tribunal admits NGO submissions in Gabriel Resources’ claim against Romania concerning mining project

7 February, 2019

The Tribunal in Gabriel Resources v Romania recently issued an order (the Order) in response to an application (the Application) made by three Romanian NGOs, as non-disputing parties, for participation and an amicus submission (the Submission) in an ICSID arbitration… Read more

Advocate General finds that CETA’s “Investment Court System” is compatible with EU law

1 February, 2019

One of the Advocates General to the Court of Justice of the European Union ("CJEU"), 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… Read more

Update on the future of ISDS: UNCITRAL Working Group III decides three areas for reform, indicating change is likely in 2019

23 January, 2019

The United Nations Commission on International Trade Law ("UNCITRAL") has been considering the possible reform of investor-state dispute settlement ("ISDS"). UNCITRAL Working Group III ("WGIII") has been given a broad mandate to identify concerns regarding ISDS procedure, consider whether reform… Read more

CJEU upholds opinion of Advocate General and rules that UK can unilaterally cancel Brexit by revoking Article 50

12 December, 2018

In a landmark decision delivered on an accelerated timetable, the Court of Justice of the European Union ("CJEU") has ruled that a Member State can unilaterally revoke its notice of intention to withdraw from the European Union ("EU") under Article… Read more

41st FA Mann Lecture: The RT Hon Dominic Grieve QC MP Speech “Brexit – Endgame of International Engagement or a New Start?”

6 December, 2018

On 22 November, the 41st FA Mann Lecture was delivered by the Rt Hon Dominic Grieve QC MP, speaking on the issue: “Brexit – endgame of international engagement or a new start?” In the Lecture Mr Grieve observed that while… Read more

4th EFILA Annual Conference 2019: The EU and the future of international investment law and arbitration – 31 January 2019, London

6 December, 2018

The European Federation for Investment Law and Arbitration (EFILA) will be holding its fourth Annual Conference, on 31 January 2019, at Herbert Smith Freehills' offices in London. The conference will focus on four topics: the EU's external investment policy; the… Read more

Energy Charter Declaration 2018 – Modernisation of the ECT

5 December, 2018

The Energy Charter Conference has issued a declaration following the 29th meeting of its Members. This year's conference, hosted by Romania, focused on the role of innovation in driving energy security, sustainability and prosperity. ... Read more

41st FA Mann Lecture tomorrow: The Rt Hon Dominic Grieve QC MP considers “Brexit- endgame of international engagement or a new start?”

21 November, 2018

The 41st of a series of annual lectures in honour of the late Dr FA Mann QC (Hon) (1907-1991) will take place tomorrow in London. This series of lectures, arranged by the Partners of Herbert Smith Freehills LLP, and given… Read more

ICSID Tribunal declines jurisdiction due to claimants’ failure to obtain environmental impact assessment in breach of local law

8 November, 2018

In a recent investment arbitration Award, in Cortec Mining v Kenya, an ICSID tribunal has declined jurisdiction over a claim brought by a trio of mining companies on the basis that the mining licences at issue had not been obtained… Read more

Second Wave of United States Sanctions Against Iran Re-Imposed

7 November, 2018

Following President Trump’s decision on 8 May, 2018 to withdraw the United States from the Joint Comprehensive Plan of Action (“JCPOA”), the US government announced that it would re-impose pre-JCPOA nuclear-related Iran sanctions (both primary and secondary) that were lifted… Read more

English Court of Appeal finds good arguable case that public policy exception applies to the foreign Act of State Doctrine allowing Ukraine to argue duress in claim under Eurobonds

7 November, 2018

In Ukraine v The Law Debenture Trust Corporation plc [2018] EWCA Civ 2026 the English Court of Appeal (the Court) partially upheld an appeal in favour of the state of Ukraine (Ukraine), reversing in part the summary judgment granted to… Read more

The Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) to come into force on 30th December

5 November, 2018

Australia has become the 6th country to ratify the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), a trade deal between 11 Pacific nations. Australia's ratification followed swiftly after Canada deposited its official notice of ratification on 24th October, joining… Read more

Upcoming Fossil Fuels Trial: Juliana v. United States

19 October, 2018

In August 2015, the United States, then president Barack Obama, and the heads of numerous federal executive agencies were sued in a civil rights action by a group of 21 young people, non-profit organization Earth Guardians, and Dr. James Hansen… Read more

Climate Change: Dutch Court of Appeal upholds the decision of the Hague District Court in Urgenda Foundation v Kingdom of the Netherlands

19 October, 2018

The Dutch Court of Appeal (the “Court”) has upheld the 2015 decision of the Hague District Court in the case of Urgenda Foundation v Kingdom of the Netherlands, and ruled that the State (ie the Kingdom of the Netherlands) has… Read more

Brexit: dispute resolution between the EU and the UK, under the withdrawal agreement and in the event that there is “no deal”

17 October, 2018

At a critical time in the Brexit negotiations, in the latest podcast on the Herbert Smith Freehills Podcast channel, Andrew Cannon and Hannah Ambrose discuss dispute resolution between the UK and the EU. They look at the way in which… Read more

English Court rejects Ukraine’s attempt to set aside enforcement order on grounds of state immunity

15 August, 2018

The English Court (the "Court") has dismissed an application by Ukraine to set aside a court order permitting Russian investor, PAO Tatneft, to enforce an arbitral award against Ukraine. Ukraine argued that it was immune from the Court's jurisdiction by… Read more

English Court finds that the foreign act of state doctrine may apply to arbitration proceedings

19 July, 2018

In the decision of Reliance Industries Limited & Ors v The Union of India [2018] EWHC 822 (Comm) the English Commercial Court (the Court) considered a number of challenges to an arbitration award brought under sections 67, 68 and 69… Read more

Save the date – resource nationalism seminar – London, 13 September 2018

18 July, 2018

We are pleased to announce that we will be holding a seminar on resource nationalism on 13 September 2018. ... Read more

State to state dispute resolution in the UK Government’s White Paper: arbitration with a potential role for the CJEU

13 July, 2018

The White Paper published yesterday, "The Future Relationship between the United Kingdom and the European Union", includes the UK Government's proposal for the resolution of disputes between the UK and the EU under what the UK Government views as an… Read more

The new draft Dutch BIT: what does it mean for investor mailbox companies?

30 May, 2018

The Netherlands has released a new draft investment treaty for public comment ("Draft BIT"). If adopted, the Draft BIT may raise questions about the Kingdom's attractiveness for foreign investors who have long taken advantage of Dutch treaty protections by structuring… Read more

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

14 May, 2018

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… Read more

Upheaval and uncertainty in mineral regulation in parts of Africa: resurgence of resource nationalism highlights the importance of investment treaty protections

11 May, 2018

The last few months have seen significant changes to mining regulations in various African states, giving rise to a concern that a regional trend of resource nationalism may be (re-)emerging. In this context it is important for companies associated with… Read more

State immunity: English court considers service of proceedings on a State in times of political unrest, and questions relating to enforcement of a foreign judgment against a State

8 May, 2018

In the recent decision of Certain Underwriters At Lloyds London v Syrian Arab Republic & Ors [2018] EWHC 385 (Comms) the English Commercial Court (the Court) considered the difficulties which may be encountered in trying to serve on a State.… Read more

EU – Japan EPA presented to the European Council, ratification begins

3 May, 2018

On 18 April 2018 the European Commission (the "Commission") presented the finalised text of the EU-Japan Economic Partnership Agreement ("EPA") to the European Council and thereby took the first step in the EPA's ratification process at the EU level. Getting… Read more

Update on the future of ISDS: the discussions within UNCITRAL Working Group III – no apparent consensus to date

19 April, 2018

After a number of years of public debate in a variety of fora, the discussion of the future development of investor-state dispute settlement (ISDS) has recently moved to the United Nations Commission on International Trade Law (UNCITRAL). UNCITRAL Working Group… Read more

EU Council publishes Negotiating Directives for Convention establishing a Multilateral Investment Court: no real surprises but a couple of gaps

18 April, 2018

On 20 March, 2018 the Council of the European Union published negotiating directives dated 1 March 2018 authorizing the European Commission to negotiate a convention establishing a multilateral court for the settlement of investment disputes between investors and states. Whilst… Read more

ICJ determines first ever compensation claim for environmental harm

13 April, 2018

On 2 February 2018, the International Court of Justice (the "ICJ" or the "Court") delivered judgment in the case concerning Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua), determining the amount of compensation due… Read more

State-to-State Dispute Settlement under the EU’s latest draft of the Withdrawal Agreement: CJEU jurisdiction remains

19 March, 2018

On 15 March 2018 the European Commission published a revised version of the draft Withdrawal Agreement between the EU and the UK previously published on 28 February 2018 following consultation with the Member States and the European Parliament. The revised… Read more

Security for costs granted by English Court in investment treaty award challenge in which claimants are receiving third-party funding

7 March, 2018

In its recent judgment in Progas Energy Limited and ors v Pakistan [2018], 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… Read more

State-to-State dispute settlement under the EU’s draft Withdrawal Agreement: CJEU jurisdiction not arbitration

2 March, 2018

We have known for some time now that the UK and EU have very different views regarding the state-to-state dispute resolution mechanism to be contained in the Withdrawal Agreement between the EU and the UK. The EU has never made… Read more

Bear Creek Mining Corp. v. Peru: the potential impact on damages of an investor’s contributory action and failure to obtain a social license

26 January, 2018

In an award dated 30 November 2017 (the "Award"), an ICSID Tribunal ordered Peru to pay around US$30.4million to Canadian company Bear Creek Mining (the "Claimant") following its finding that a 2011 decree ("Decree 032") constituted an unlawful indirect expropriation… Read more

North American trade and investment developments: No new NAFTA (for now), and Mexico signs the ICSID Convention

24 January, 2018

One month into 2018, the future of NAFTA continues to hang in the balance. The negotiating parties will reportedly convene in Ottawa for the sixth of seven planned negotiating sessions from January 23 – 29th.[1] The parties initially hoped to… Read more

3rd EFILA annual conference 2018: parallel states’ obligations in investor-state arbitration – 5 February 2018, London

17 January, 2018

The European Federation for Investment Law and Arbitration (EFILA) will be holding its third Annual Conference on 5 February 2018 at the Senate House in London. The conference will focus on four topics: non-disputing third parties and their influence on… Read more

UK Supreme Court confirms the limited scope of state and diplomatic immunity from employment claims: Benkharbouche and Reyes

29 November, 2017

In two judgments handed down on 18 October 2017, the Supreme Court (the "Court") has allowed certain employment claims made by foreign nationals employed as domestic workers at the embassies of foreign states and a diplomat's residence to proceed despite… Read more

The 40th FA Mann Lecture 2017: “Justiciability”

24 November, 2017

27 November 2017 at 6pm The FA Mann lecture is an annual event in honour of the late Dr F A Mann QC (Hon) (1907-1991) arranged by the partners of Herbert Smith Freehills LLP, and given under the auspices of… Read more

A Comprehensive and Progressive Agreement for Trans-Pacific Partnership

17 November, 2017

Key points The ministers responsible for the Trans-Pacific Partnership (TPP) of 11 countries have announced that the core elements of a Comprehensive and Progressive Agreement for Trans-Pacific Partnership are agreed (CPTPP). While much of the original TPP looks to remain… Read more

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