Table of Contents |
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Title information |
Preface Guidance on Citations and Sources Journals Treaties Other About the Authors Table of Cases I. Introduction A. The Importance of Investment Flows for Capital Importers and Exporters B. The Purpose of Investment Protection II. History and Limitations of the Traditional System for Resolving Investment Disputes A. Harms Suffered by Foreign Investors B. Barriers to Recovery by Foreign Investors C. Traditional Remedies for Foreign Investors D. Some Early Investment Protection Regimes E. Limitations of Historic Dispute Settlement Processes III. The Modern System of Investor-State Arbitration A. Origins B. ICSID and Its Central Role in the New System of Investor-State Arbitration C. Bilateral Investment Treaties D. Multilateral Investment Treaties E. National Investment Legislation IV. Commonly Used Procedural Rules A. Introduction B. C. Stockholm Chamber of Commerce Rules D. International Chamber of Commerce Rules E. UNCITRAL Arbitration Rules F. Comparison of the ICSID and V. Procedural Law Applicable in Investor-State Arbitration A. Choice of Procedural Law of Arbitration B. Mandatory Procedural Law of the Forum C. Procedural Law Applicable Under the International Centre for Settlement of Investment Disputes Con VI. National Court Interference: Anti-Arbitration Injunctions A. Introduction B. Anti-Arbitration Injunctions C. Anti-Arbitration Injunctions and the International Centre for Settlement of Investment Disputes Co VII. The Course of an Investment Arbitration A. Introduction B. Waiting Periods C. Local Remedies D. Notice of Claim and Request for Arbitration E. “Registration” or Approval by Arbitral Institution F. Default of a Party G. Composition of Tribunal H. Initial Session of the Tribunal I. Arbitrator-Ordered Interim Relief J. Jurisdictional Phase K. Merits Phase L. Damages Phase M. Hearings N. Posthearing Briefs O. Award P. Enforcement and Challenge of Award VIII. Consolidation under Relevant Arbitration Rules or Treaties A. International Centre for Settlement of Investment Disputes B. United Nations Commission on International Trade Law C. North American Free Trade Agreement D. Consolidation Provisions in Other Bilateral and Multilateral Investment Treaties E. International Chamber of Commerce Rules IX. Governing Law in Investment Disputes A. Introduction B. Rules Chosen by the Parties C. Investment Treaties and Their Interpretation D. Host State Law E. Public International Law X. Consent to Arbitral Jurisdiction A. Introduction B. Fundamental Concepts Relating to Consent C. Arbitration Clauses in Investment Contracts D. National Investment Legislation E. Investment Protection Treaties as Consent to Arbitration F. Investment Arbitration Based on Compromis XI. The Concept of Investment A. The Changing Definition of Investment: The Historical Perspective B. Definitions of Investment in Investment Protection Instruments C. Definition of Investment and Its Implications for the Jurisdiction of Arbitral Tribunals Under the Washington Convention D. The Concept of Unity of Investment Under the Washington Convention E. Concept of Investment and Its Implications for the Jurisdiction of Arbitral Tribunals Under Arbitr F. Preinvestment Protection XII. The Nationality of the Investor A. Nationality of Natural Persons Under Customary International Law: Effective Nationality Principle B. Qualified Investors Under Investment Treaties and the Washington Convention C. Change of National Identity XIII. Exhaustion of Local Remedies A. Exhaustion of Local Remedies Under Customary International Law B. Exhaustion of Local Remedies in Investment Treaty Arbitration C. Exhaustion of Local Remedies and the Loewen Case XIV. Election of Forum: National Courts and Contract Arbitrations A. National Courts and Treaty Arbitration B. Investment Treaties and Contractual Forum Selection Clauses XV. Discrimination A. National Treatment B. Most Favored Nation Treatment C. Discriminatory Impairment XVI. Expropriation A. Historical Overview of Expropriation B. Investments and Property Protected Against Expropriation C. The Role of Investment Treaties D. The Problem of Indirect or Regulatory Expropriation E. Case Study: Metalclad v. Mexico F. The Current U.S. Approach to Indirect or Regulatory Expropriation XVII. “Fair and Equitable Treatment” and “Full Protection and Security” A. The Relationship of “Fair and Equitable Treatment” and “Full Protection and Security” to Customary B. The Meaning of Fair and Equitable Treatment C. Full Protection and Security XVIII. Umbrella Clauses A. Introduction B. Historical Background and Various Formulations of Umbrella Clauses C. Arbitral Decisions Involving Umbrella Clauses D. Conclusion XIX. Damages, Compensation, and Non-Pecuniary Remedies A. Introduction B. The Function of Reparation: To Eliminate the Consequences of an Illegal Act C. Non-Pecuniary Remedies: Specific Performance and Other Injunctive Relief D. Standard of Compensation E. Valuation of Assets F. Valuation of Enterprises or Projects That Have Not Become Profitable G. Awarding Lost Profits for Breach of Contract H. Factors Potentially Limiting the Amount of Compensation I. Role of Equity J. Interest K. Arbitration Costs and Attorneys’ Fees XX. Annulment and Set Aside A. International Centre for Settlement of Investment Disputes Annulment B. Challenge to Non-ICSID Investment Arbitration Awards C. Waiver of Objections D. Agreements to Narrow the Grounds for Annulment E. The Effect of Annulled Investment Arbitration Awards F. Case Studies of Non-ICSID Challenge Proceedings XXI. Enforcement of Awards A. Confirmation B. Enforcement of Awards Under the New York Convention C. Execution in Investment Arbitrations D. Sovereign Immunity and the Washington Convention E. Conclusion XXII. The Future of International Investment Arbitration A. Trends in the Conclusion and Amendment of Investment Treaties B. Trends in the Development of Substantive and Procedural Provisions of Investment Treaties C. Future Jurisprudence of Investment Protection: Possible Problems and Solutions Select Bibliography Index of Treaties, Conventions, and International Agreements |
Preface
This book is the product of many years of teaching and practice in the field of investment arbitration. It was originally written as a textbook for the students of a seminar on investor-State arbitration, which we have taught for several years at Georgetown University Law Center. With the proliferation of investment treaties, and the resulting expansion of investment arbitration as a practice area in which we have been actively involved, the focus of the book changed to suit a wider audience. We hope it will be useful for legal practice as well as for academic purposes. In various chapters of the book, we have sometimes cited cases in which we have been involved as counsel or arbitrator, including: Berschader v. Russian Federation, Biloune v. Ghana Investments Center, Biwater Gauff v. Tanzania, CMS v. Argentina, Champion Trading v. Egypt, Duke Energy v. Peru, Karaha Bodas Company v. Pertamina, Loewen v. United States, Methanex v. United States, Middle East Cement v. Egypt, Parkerings v. Lithuania, and Wena Hotels v. Egypt.
The writing of this book has been a truly collaborative exercise. While we have sought to reach agreement on all of the issues presented here, including the most controversial, each of us came to the project with our own views and experience. As a result, not all of the statements made represent precisely the opinions of all of us. More importantly, the material presented does not necessarily reflect the views of the law firms with which we are affiliated, or the views of the clients of those firms.
We wish to thank the following individuals for their assistance in various stages of writing this book: James Berger, Kristin Cleary, Matt Dunne, Francine Forrester, Suzanne Garner, Sarah Hagans, Bernhard Lauterburg, Robin Lupton, Stephanie K. Rosenthal, and Seung-Hyun Ryu. Our special thanks go to Nicholas J. Birch for his excellent research and editorial assistance.
We would also like to thank Oxford University Press, particularly Peter Rocheleau, Larry Selby, Edward Burchell, and Susan De Maio.
Finally, we would like to thank our families for their constant support and encouragement, without which this work could not have been completed. In particular, we would like to thank our wives, Susan, Daphne, Masha, and Guly for their tolerance and forbearance during this long process.
Guidance on Citations and Sources
This volume contains a combination of monograph text and some extensive extracts, or excerpts, from cases and other materials. Citations follow the Blue Book (a standard citation manual for U.S. legal writing), practitioner’s style, with some exceptions.
To identify footnotes that were drawn from (were part of) the original extract, and to distinguish them from the footnotes that we the authors have created: the notation “SN” appears at the beginning of each footnote of the former type (was part of the original text). It is an abbreviation for “Source Note.” However, where SN appears: the footnote number appearing as superscript in text (and at the foot of the page) is different from the footnote number appearing in the original text.
To facilitate the use of this book, we have included extensive cross-references to alert the reader to related discussions in other chapters or other sections of the same chapter.
Citations to online sources are provided for many of the cited materials, but are omitted for very common sources to avoid excessive repetition. We have referred to a number of bilateral investment treaties, which are most commonly found at UNCTAD’s Investment Instruments Online Web site: http://www.unctadxi.org/templates/DocSearch_779.aspx.
Similarly, we have referred to a number of investment treaty arbitration decisions and awards. The vast majority of these decisions can be found at Oxford University Press’s site: www.investmentclaims.com. Other important online sources for jurisprudence include: www.naftaclaims.com (for NAFTA awards and related documents, such as written submissions) and http://ita.law.uvic.ca/.
We have referred almost universally to the relevant paragraph numbers in the decisions cited. In instances where we have referred to a page or a range of pages within an award or other arbitration-related document, the reference is to the page number in the original document, which may be found at one of the two websites named immediately above, unless otherwise indicated.