ICSID Reports

We've joined Twitter to showcase nearly 30 years of reporting on international investment law! Next week, watch for our first #ICSIDRepRetro. Volume 20 on Attribution of Conduct will be published @CUP_Law in May, feat. commentary by @ICSID SG Meg Kinnear. cambridge.org/core/journals/…

For a discussion on the complex interplay of attribution rules and umbrella clauses with references to relevant jurisprudence, see the study of Co-General Editor Jorge Viñuales ‘Attribution of conduct to States in investment arbitration’ 20 ICSID Rep 13: cambridge.org/core/journals/…

#ICSIDRepRetro umbrella 6: Ortiz v Algeria 20 ICSID Rep 571 (summary/translation: D Charlotin @iareporter); different language versions of umbrella clause; claim dismissed, as Algeria was not party to contracts claimant signed with State-owned businesses: cambridge.org/core/journals/…

#ICSIDRepRetro umbrella 5: Noble Ventures v Romania 16 ICSID Rep 210; umbrella clauses introduce exception to general separation of obligations under municipal and international law, and should be interpreted strictly: cambridge.org/core/journals/…

#ICSIDRepRetro umbrella 4: Eureko v Poland 12 ICSID Rep 331; tribunal found a breach of the umbrella clause, endorsing the SGS v Philippines interpretative approach and giving weight to the effet utile and location of the clause in the BIT: cambridge.org/core/journals/…

#ICSIDRepRetro umbrella 3: Pan American v Argentina 17 ICSID Rep 41; tribunal endorses SGS v Pakistan interpretation and holds that umbrella clause does not extend the tribunal’s jurisdiction, which only covers ‘investment agreements’: cambridge.org/core/journals/…

#ICSIDRepRetro umbrella 1-2: SGS v Pakistan 8 ICSID Rep 383 & SGS v Philippines 8 ICSID Rep 515, the early cases adopting drastically different approaches on the meaning & effect of umbrella clauses: cambridge.org/core/journals/… cambridge.org/core/journals/…

@icsid Z Douglas has previously expressed his views against the finding of strict liability based on the ‘elevation theory’ of the umbrella clause in his 2022 dissent in Gardabani v Georgia. Majority award and dissent available here: italaw.com/cases/10246

This #ICSIDRepRetro focuses on umbrella clauses in #ISDS. In a recent note for @ICSID Review, Zachary Douglas defends a functional interpretation of umbrella clauses against the rival theory of automatic elevation of contract breaches into treaty breaches academic.oup.com/icsidreview/ad…

#ICSIDRepRetro asgmt 4: CSOB v Slovakia 5 ICSID Rep 330; tribunal rejected assertion that the assignment of the claim after the initiation of proceedings deprived claimant of its standing. cambridge.org/core/journals/…

#ICSIDRepRetro asgmt 3: Mihaly v Sri Lanka 6 ICSID Rep 308; tribunal held that a Canadian company could not assign to its US partner (the claimant) an ICSID claim that it could not bring itself due to Canada not being a member of the ICSID Convention. cambridge.org/core/journals/…

#ICSIDRepRetro asgmt 2: Loewen v USA 7 ICSID Rep 421; applying a ‘continuous nationality’ rule, tribunal declined jurisdiction over the NAFTA claims following their assignment to a Canadian corporation owned and controlled by a US corporation. cambridge.org/core/journals/…

#ICSIDRepRetro asgmt 1: CME v Czech Republic 9 ICSID Rep 113; tribunal rejected objection that BIT breaches occurred before shares acquisition, holding that any claims deriving from predecessor’s investment (also covered by BIT) follow the assigned shares cambridge.org/core/journals/…

To set the scene for this week's #ICSIDRepRetro, check this article by @Claussen_K @GeorgetownLaw offering an insightful analysis of the law of int'l claims trade, engaging with relevant jurisprudence and suggesting ways forward @cardozoLRev cardozolawreview.com/the-internatio…

This week's #ICSIDRepRetro will focus on the assignment of treaty claims. In a recently surfaced decision, the Cyprus Popular Bank v Greece tribunal rejected argument that the resolution incorporating some of claimant’s assets into a ‘good bank’ also transferred its BIT claims.

#ICSIDRepRetro crim 5: Hamester v Ghana 20 ICSID Rep 164 (summary G Alvarez-Avila & J McGlaughlin @CurtisLawFirm); State entitled to exercise sovereign powers to investigate/prosecute crim acts; no evidence that crim proceedings breached treaty obligations cambridge.org/core/journals/…

#ICSIDRepRetro crim 4: Tokios Tokelés v Ukraine 11 ICSID Rep 305; tribunal denied provisional measures request to enjoin the criminal proceedings against the General Director of claimant’s subsidiaries in Ukraine for lack of necessity and urgency: cambridge.org/core/journals/…

#ICSIDRepRetro crim 3: Yaung Chi Oo v Myanmar 8 ICSID Rep 452; tribunal dismissed the claimant’s request for stay of all domestic criminal and civil proceedings as unnecessary, considering that any possible loss could be repaired by monetary compensation: cambridge.org/core/journals/…

#ICSIDRepRetro crim 2: Gavrilović v Croatia 20 ICSID Rep 512 (summary by Z Kady & C Devine @Gibsondunn); tribunal declined to suspend domestic criminal investigation due to lack of evidence that the investigation would infringe the investors’ rights: cambridge.org/core/journals/…

#ICSIDRepRetro crim 1: Quiborax v Bolivia 18 ICSID Rep 393 (summary by O Marsden &Y Mantilla @Freshfields); tribunal ordered suspension of domestic criminal proceedings until completion of arbitration; held evidence from criminal proceedings admissible: cambridge.org/core/journals/…

To set the scene for this week’s #ICSIDRepRetro on #ISDS and domestic criminal proceedings, check this 2020 article by L Uilenbroek (@LinklatersLLP) on the power of investment tribunals to enjoin domestic criminal proceedings through interim measures: academic.oup.com/arbitration/ar…