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international litigation blog

Modernizing ICSID’s Rules for Resolving Investment Disputes

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By Martina Polasek and Damon Vis-Dunbar[1]

The procedural rules of the International Centre for Settlement of Investment Dispute  (ICSID) have been successfully applied to hundreds of cases since they were first adopted in 1967, a remarkable testament to the innovative spirit and foresight of the original drafters. The robustness of the rules has also made the task of gradual modernization much easier.

The rules have, in fact, evolved over the last 50 years. In 1978, the ICSID Additional Facility was created, offering arbitration, conciliation, and fact-finding services to disputes that fall outside the scope of the ICSID Convention – namely where only one of the parties is an ICSID Member State or national of one, or where the dispute does not arise “directly” out of an investment between a state and a foreign national.

There have been three subsequent rounds of rule changes, the most recent of which entered into force in April 2006. Those amendments included strengthened disclosure requirements for arbitrators; expanded transparency provisions (including a provision allowing open hearings); and a new rule allowing a party to obtain an early dismissal of a case due to manifest lack of legal merit[2].

As readers of this blog may be aware, ICSID is now in the process of updating its rules for the fourth time. Notably, the amendments under consideration are the most extensive to date. They cover the ICSID Regulations and Rules, adopted pursuant to the ICSID Convention; the Additional Facility Rules; the Administrative and Financial Regulations; and the Institution Rules.READ MORE

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English Commercial Court Rules on Enforcement of Section 1782 Order

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It has been a couple of weeks since I wanted to report on a judgment by the English Commercial Court which ruled on the enforcement of 28 U.S.C. Section 1782 (Section 1782)[1]. As we discussed before, Section 1782 is a U.S. Federal Statute that allows a litigant before a “foreign or international tribunal” outside the United States to apply to the U.S. district courts to obtain discovery against a person or entity residing or found in the district where the application is sought.READ MORE

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The Peruvian State’s Response to International Investment Disputes

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The dispute settlement system between foreign investors and host States of investment has seen an important development in recent years. This should not be a surprise if we consider that the trend of signing bilateral agreements for the promotion and protection of investments had a notable increase at the beginning of the nineties. These agreements establish a series of guarantees and minimum protections for foreign investment, as well as a mechanism for the resolution of disputes that may arise with respect to alleged breaches of said commitments. The vast majority of proceedings initiated at the International Centre for Settlement of Investment Disputes (ICSID) are based on an alleged breach of one of these instruments.

Peru has not been a stranger to the tendency of signing international agreements for the promotion and protection of investments and, unfortunately, it has also seen a sharp increase in new international investment controversies in recent years.

After facing a first case in 2003, Peru understood the importance of being able to efficiently and effectively organize its defence, establish coordination mechanisms within the State, centralize all relevant information and define the responsibilities of the entities involved in the controversies.READ MORE

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Belgian Supreme Court Rules on Validity of NATO’s Arbitration Clause in Light of Article 6 ECHR

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On 27 September 2018, the Belgian Supreme Court handed down a judgment regarding the validity, in light of Article 6, paragraph 1 (right to a fair trial) of the European Convention on Human Rights (the ECHR), of an arbitration clause contained in a service agreement concluded between the North-Atlantic Treaty Organization (NATO) and one of its gardeners (Mr. P) in 2007.READ MORE

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A Watershed Moment for ISDS Reform

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Last week marked a watershed moment for the movement to reform investor-state dispute settlement (ISDS). Meeting in Vienna, Delegates to the United Nations Commission on International Trade Law (UNCITRAL) Working Group III (WGIII) agreed to work multilaterally to reform the resolution of investment disputes. Delegates agreed to focus on responding to key systemic concerns with ISDS, as identified in WGIII’s two previous sessions.[1]

WGIII began its work on ISDS in Vienna last year, at its 34th Session. From the start, Delegates divided the process into three broad phases: identifying concerns about ISDS (Phase I); deciding which concerns, if any, were ripe for multilateral reform in UNCITRAL (Phase II); and designing options for reforms responding to any such concerns (Phase III). Phases I and II would be of prime importance in setting the frame. Though additional concerns can always be raised, any agenda for reform would be largely grounded in the problems identified in these early meetings. WGIII began its work identifying concerns with ISDS in 2017 and essentially concluded Phase I at its 35th Session in New York last Spring. By the end of that meeting, WGIII had identified a range of procedural and structural concerns with ISDS, relating to: (i) fragmented arbitral outcomes; (ii) the arbitrators charged with adjudicating disputes; (iii) matters of duration and cost; and (iv) third-party funding.READ MORE

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European Court of Human Rights Rules That, If So Requested, CAS Hearings Must Be Public

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On 2 October 2018, the European Court of Human Rights (the ECtHR) held in the case of Mutu and Pechstein v. Switzerland that arbitration proceedings before the Court of Arbitration for Sport (the CAS) violated the right to a fair trial enshrined in Article 6, paragraph 1 of the European Convention on Human Rights (the ECHR) if those proceedings were not conducted publicly despite the express request of one of the parties.READ MORE

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