Investment Arbitration Decisions
Author(s):
ISBN:
978-1-933833-72-9
Page Count:
1,116 pages
Published:
January, 2012
Jurisdictions:
Investment Arbitration Decisions gives the reader extracts from significant investment arbitration award decisions. These decisions are commented on by distinguished arbitrators, lawyers, justices and other legal professionals. In this volume are presented a range of materials that were first published in the Stockholm International Arbitration Review (SIAR) in its rubric dedicated to investment arbitration. For several years, SIAR offered to its readers decisions, awards and commentaries to be found nowhere else in print, at a time when the discipline of investment arbitration was still rather novel and in a period of intense expansion. Where necessary, the commentary and analysis have been revised by the contributors prior to publication, making this volume a welcome addition to any legal library.
PDF of Title Page and T.O.C.
Investment Arbitration Decisions
FOREWORD
By Noah Rubins
(1) Final Arbitral Award Rendered in 1998 in An Ad Hoc Arbitration in Stockholm, Sweden
Observations by Walid Ben Hamida
Observations by Stefan Kröll and Jörn Griebel
(2) Judgment by The Stockholm District Court Rendered on 18 December 2002
(3) Decision by The Svea Court of Appeal Rendered on 15 June 2005
Observations by Domenico di Pietro
SUBJECT- MATTERS:
1) Definition of "investor"
2) Scope of the definition of "investment"
3) The scope of expropriation provisions
4) Application of the principle of lis pendens
5) Propriety of State as respondent
6) Compliance with pre-arbitration procedures
7) Identification and valuation of investments subject to expropriation
(4) Two Decisions by Germany's Supreme Court Rendered on 4 October 2005, VII ZB 08/05 and VII ZB 09/05
SUBJECT- MATTERS:
1) Can the Russian State's claims against the German State or a German company be attached to secure payment of a German private individual's award against Russia?
2) Does an arbitration clause in a bilateral investment treaty constitute a waiver by the State of its immunity from enforcement of the award?
Observations by Hilmar Raeschke-Kessler
(5) Developments from January 2008 to June 2010
a. German Federal Court of Justice IX 64/08
b. German Federal Court of Justice, VII 37/08
c. Cologne Higher Regional Court, 22 U 98/07
d. Berlin Higher Regional Court, 1 W 276/09
SUBJECT- MATTER:
Execution of an arbitral award against the Russian Federation based on the 1989 Bilateral Investment Protection Treaty between the Federal Republic of Germany and the Union of Socialist Soviet Republics. Execution Immunity and States operating through State-owned corporations.
Observations by Friederike Stumpe
(1) SCC Case 118/2001 Final Award Rendered on 16 December 2003
SUBJECT- MATTER:
Whether the Republic of Latvia was in breach of its obligations under the Energy Charter Treaty (ECT) towards the claimant due to the fact that the republic's state-owned company allegedly did not pay the claimant's subsidiary in accordance with the contract between company and subsidiary.
Observations by Richard Happ
(1) SCC Case 122/2001 Jurisdictional Award Rendered in 2003
SUBJECT- MATTERS:
1) Applicable law to jurisdictional issues under the arbitration clause.
2) Res judicata and collateral estoppel.
3) Principle of Separability, Competence-Competence Doctrine.
4) Act of State Doctrine.
5) Comity among states.
6) Sovereign state, Issue of sovereign immunity.
7) Definition of "foreign investor" under the Foreign Investment Law of Kazakhstan.
8) Applicable law to jurisdictional issues under the Treaty between the USA and the Republic of Kazakhstan Concerning the Encouragement and Reciprocal Protection of Investment (19 May 1992) ("BIT").
9) Definition of "National of another Contracting State" under the Treaty between the USA and the Republic of Kazakhstan Concerning the Encouragement and Reciprocal Protection of Investment.
10) Burden of proof to establish "National of another Contracting State" under the Treaty between the USA and the Republic of Kazakhstan Concerning the Encouragement and Reciprocal Protection of Investment.
(2) SCC Case 122/2001
Final Award Rendered in 2004
SUBJECT- MATTERS:
1) Jurisdiction - Validity of the Agreement - Apparent authority, Ratification by acceptance.
2) Jurisdiction - Admission to jurisdiction of the Kazakh courts.
3) Party to the arbitration agreement - Sovereign state and state organ - whether the department designated in the Agreement or the State is the contractual party.
4) Effects of prior court decision on termination of the Agreement.
5) Whether act of the Prosecutor General, and the national courts, either in its capacity of contractual party to the Agreement or under norms of Kazakh law and customary international law should be considered as acts attributable to Sovereign State.
6) Loss of future profit based on contractual right of first refusal - the owner's decision to sell and without specification on the purchase price to be paid, may give rise to a claim for damages.
7) Concept of expropriation, "creeping" or "covert" expropriation.
(3) SCC Case 122/2001
Supplemental Award and Interpretation Rendered in 2004
SUBJECT- MATTERS:
1) Enforcement of the Tribunal's decision on costs - whether the Tribunal can issue award or order to enforce its decision on costs.
2) Correction of the award based on miscalculation.
Observations by Hans Smit
Docket T-225-01, T-81-03
Order of Canada's Federal Court on 13 January 2004
Observations by Rajeev Sharma
Decision by The Svea Court of Appeal
Rendered on 26 August 2005
SUBJECT- MATTERS:
1) Did the Arbitral Tribunal rule on all of the issues that were submitted to it?
2) Was the decision taken by the Arbitral Tribunal a jurisdictional decision, or a decision on the substance of the parties' dispute?
Observations by Michael Polkinghorne and Matthew Secomb
SCC Case 93/2004
Arbitral Award Rendered on 22 September 2005
SUBJECT- MATTERS:
1) Jurisdiction under a Bilateral Investment Treaty.
2) Application of the principle of iura novit curia and failure of Respondent to appear (procedural default).
3) Application of the fair and equitable treatment standard.
4) Reimbursement of moral damages.
Observations by Jeremy Wilson
(1) SCC Case 126/2003
Final Arbitral Award Rendered on 29 March 2005
SUBJECT- MATTERS:
1) Is the Energy Charter Treaty (ECT) applicable to a company registered in Gibraltar?
2) Are the conditions for application of Article 17 (1) of the ECT present?
3) The potential res judicata effect after the domestic litigation and the UNCITRAL Arbitration.
4) Doctrine of collateral estoppel.
5) Whether Petrobart qualifies as an investor under the ECT?
6) Did Petrobart make an investment in the Kygryz Republic?
7) Whether the Kyrgyz Republic violated its obligations under
Articles 10(1), 10(12), 13(1) and 22(1) of the ECT.
Observations by Georgios Petrochilos and Noah Rubins
(2) Case No. T 3739-03
Decision of the Svea Court of Appeal, Judgment Rendered on 13 April 2006
SUBJECT- MATTER:
Action for amendment of an arbitral award
(3) Case No. T 5208-05
Decision of the Svea Court of Appeal
Judgment Rendered 19 January 2007
SUBJECT- MATTER:
Challenge to an arbitral award
(4) Case No. T 2113-06
Decision of the Swedish Supreme Court
Judgment Rendered 28 March 2008
SUBJECT- MATTERS:
1) Challenge of an arbitral award terminating the arbitration for lack of jurisdiction.
2) The scope of application of the so-called "doctrine of assertion" in arbitration.
(5) The Petrobart Saga
By Erik Karlsson
(6) Comments on the Swedish Supreme Court's Recent Judgment on the So-Called "Doctrine Of Assertion" and the Arbitrators' Jurisdiction in Investment Disputes
By Paulo Fohlin
(7) Comments on the Petrobart Limited v. The Kyrgyz Republic Case
Anonymous
SCC Arbitration V (080/2004)
Arbitral Award Rendered in Stockholm on 21 April 2006
SUBJECT- MATTERS:
1) Do the Claimants (two Belgian physical individuals) who own shares in a company incorporated in Belgium, BI, which owns assets in the territory of the Russian Federation qualify as investors within the meaning of the Luxembourg/ Belgium-Russia BIT (the Treaty)?
2) Have the Claimants carried out an investment within the meaning of the Treaty?
3) To what extent can the Claimants rely on the most favoured nation (MFN) clause contained in the basic Treaty to import a more favourable dispute settlement mechanism contained in a third party treaty concluded by the Russian Federation to establish the jurisdiction of the Arbitral Tribunal?
Observations by Domenico Di Pietro
ICSID Case No. Arb/04/15
Arbitral Award Rendered on 13 September 2006
SUBJECT- MATTERS:
1) Challenge of the Tribunal's jurisdiction grounded on the fact that the relevant BIT limited recourse to international arbitration for claims of expropriation only.
2) Indirect expropriation.
3) The scope of application of Most Favoured Nation clauses.
4) Allocation of costs.
Observations by Domenico Di Pietro
ICSID Case No. Arb/99/7
Decision of the Ad Hoc Committee on the Application for
Annulment of the Award Rendered on 1 November 2006
SUBJECT- MATTERS:
1) Annulment under Article 52 of the ICSID Convention.
2) Jurisdiction and definition of investment under a Bilateral Investment Treaty.
3) Jurisdiction and definition of investment under the ICSID Convention.
Observations by Reza Mohtashami
UNCITRAL Arbitral Award on Jurisdiction
Rendered in Washington, D.C., U.S. on 28 January 2008
SUBJECT- MATTER:
Jurisdiction of Tribunal to hear a claim brought under Chapter Eleven of the NAFTA (North American Free Trade Agreement). Territorial location requirement for protected investments and investors.
Observations by Jean-François Hébert
(1) SCC Case V (024/2007)
Award on Preliminary Objections Rendered on 20 March 2009
SUBJECT- MATTER:
Whether the arbitral tribunal has subject-matter jurisdiction under Articles 10 and 5 of the Spain/Russia BIT, whether it has personal jurisdiction over the seven claimants, whether the claimants had made investments and, if so, whether their claims are admissible.
(2) Yukos and Some of Its Progeny
By Lucia Raimanova
ARTICLES
By Helge Elisabeth Zeitler
By Annie L. Phillips
By Max Gutbrod and Steffen Hindelang
By Luke Eric Peterson
By John Savage and Elodie Dulac
By Thomas Eilmansberger
INDEX
About the Editor:
Noah Rubins is a Partner in the Paris office of Freshfields, where he is a member of the international arbitration and public international law groups. Mr. Rubins is a U.S. qualified lawyer and has advised and represented clients in arbitrations under ICSID, ICC, ICDR, SCC and UNCITRAL rules. He specializes in disputes in the former Soviet Union and investment treaty arbitration. In addition to advising clients, Mr. Rubins has served as arbitrator in a range of disputes, conducted under the ICC, ICSID, LCIA, SCC and UNCITRAL rules.
Contributors Include:
Domenico Di Pietro
Elodie Dulac
Thomas Eilmansberger
Paulo Fohlin
Jörn Griebel
Max Gutbrod
Walid Ben Hamida
Richard Happ
Jean-François Hébert
Steffen Hindelang
Erik Karlsson
Stefan Kröll
Reza Mohtashami
Luke Eric Peterson
Georgios Petrochilos
Annie L. Phillips
Michael Polkinghorne
Hilmar Raeschke-Kessler
Lucia Raimanova
John Savage
Matthew Secomb
Rajeev Sharma
Hans Smit
Friederike Stumpe
Jeremy Wilson
Helge Elisabeth Zeitler
Author/Editor Detail:
About the Editor:
Noah Rubins is a Partner in the Paris office of Freshfields, where he is a member of the international arbitration and public international law groups. Mr. Rubins is a U.S. qualified lawyer and has advised and represented clients in arbitrations under ICSID, ICC, ICDR, SCC and UNCITRAL rules. He specializes in disputes in the former Soviet Union and investment treaty arbitration. In addition to advising clients, Mr. Rubins has served as arbitrator in a range of disputes, conducted under the ICC, ICSID, LCIA, SCC and UNCITRAL rules.
Contributors Include:
Domenico Di Pietro
Elodie Dulac
Thomas Eilmansberger
Paulo Fohlin
Jörn Griebel
Max Gutbrod
Walid Ben Hamida
Richard Happ
Jean-François Hébert
Steffen Hindelang
Erik Karlsson
Stefan Kröll
Reza Mohtashami
Luke Eric Peterson
Georgios Petrochilos
Annie L. Phillips
Michael Polkinghorne
Hilmar Raeschke-Kessler
Lucia Raimanova
John Savage
Matthew Secomb
Rajeev Sharma
Hans Smit
Friederike Stumpe
Jeremy Wilson
Helge Elisabeth Zeitler
Table of Contents:
PDF of Title Page and T.O.C.
Investment Arbitration Decisions
FOREWORD
By Noah Rubins
(1) Final Arbitral Award Rendered in 1998 in An Ad Hoc Arbitration in Stockholm, Sweden
Observations by Walid Ben Hamida
Observations by Stefan Kröll and Jörn Griebel
(2) Judgment by The Stockholm District Court Rendered on 18 December 2002
(3) Decision by The Svea Court of Appeal Rendered on 15 June 2005
Observations by Domenico di Pietro
SUBJECT- MATTERS:
1) Definition of "investor"
2) Scope of the definition of "investment"
3) The scope of expropriation provisions
4) Application of the principle of lis pendens
5) Propriety of State as respondent
6) Compliance with pre-arbitration procedures
7) Identification and valuation of investments subject to expropriation
(4) Two Decisions by Germany's Supreme Court Rendered on 4 October 2005, VII ZB 08/05 and VII ZB 09/05
SUBJECT- MATTERS:
1) Can the Russian State's claims against the German State or a German company be attached to secure payment of a German private individual's award against Russia?
2) Does an arbitration clause in a bilateral investment treaty constitute a waiver by the State of its immunity from enforcement of the award?
Observations by Hilmar Raeschke-Kessler
(5) Developments from January 2008 to June 2010
a. German Federal Court of Justice IX 64/08
b. German Federal Court of Justice, VII 37/08
c. Cologne Higher Regional Court, 22 U 98/07
d. Berlin Higher Regional Court, 1 W 276/09
SUBJECT- MATTER:
Execution of an arbitral award against the Russian Federation based on the 1989 Bilateral Investment Protection Treaty between the Federal Republic of Germany and the Union of Socialist Soviet Republics. Execution Immunity and States operating through State-owned corporations.
Observations by Friederike Stumpe
(1) SCC Case 118/2001 Final Award Rendered on 16 December 2003
SUBJECT- MATTER:
Whether the Republic of Latvia was in breach of its obligations under the Energy Charter Treaty (ECT) towards the claimant due to the fact that the republic's state-owned company allegedly did not pay the claimant's subsidiary in accordance with the contract between company and subsidiary.
Observations by Richard Happ
(1) SCC Case 122/2001 Jurisdictional Award Rendered in 2003
SUBJECT- MATTERS:
1) Applicable law to jurisdictional issues under the arbitration clause.
2) Res judicata and collateral estoppel.
3) Principle of Separability, Competence-Competence Doctrine.
4) Act of State Doctrine.
5) Comity among states.
6) Sovereign state, Issue of sovereign immunity.
7) Definition of "foreign investor" under the Foreign Investment Law of Kazakhstan.
8) Applicable law to jurisdictional issues under the Treaty between the USA and the Republic of Kazakhstan Concerning the Encouragement and Reciprocal Protection of Investment (19 May 1992) ("BIT").
9) Definition of "National of another Contracting State" under the Treaty between the USA and the Republic of Kazakhstan Concerning the Encouragement and Reciprocal Protection of Investment.
10) Burden of proof to establish "National of another Contracting State" under the Treaty between the USA and the Republic of Kazakhstan Concerning the Encouragement and Reciprocal Protection of Investment.
(2) SCC Case 122/2001
Final Award Rendered in 2004
SUBJECT- MATTERS:
1) Jurisdiction - Validity of the Agreement - Apparent authority, Ratification by acceptance.
2) Jurisdiction - Admission to jurisdiction of the Kazakh courts.
3) Party to the arbitration agreement - Sovereign state and state organ - whether the department designated in the Agreement or the State is the contractual party.
4) Effects of prior court decision on termination of the Agreement.
5) Whether act of the Prosecutor General, and the national courts, either in its capacity of contractual party to the Agreement or under norms of Kazakh law and customary international law should be considered as acts attributable to Sovereign State.
6) Loss of future profit based on contractual right of first refusal - the owner's decision to sell and without specification on the purchase price to be paid, may give rise to a claim for damages.
7) Concept of expropriation, "creeping" or "covert" expropriation.
(3) SCC Case 122/2001
Supplemental Award and Interpretation Rendered in 2004
SUBJECT- MATTERS:
1) Enforcement of the Tribunal's decision on costs - whether the Tribunal can issue award or order to enforce its decision on costs.
2) Correction of the award based on miscalculation.
Observations by Hans Smit
Docket T-225-01, T-81-03
Order of Canada's Federal Court on 13 January 2004
Observations by Rajeev Sharma
Decision by The Svea Court of Appeal
Rendered on 26 August 2005
SUBJECT- MATTERS:
1) Did the Arbitral Tribunal rule on all of the issues that were submitted to it?
2) Was the decision taken by the Arbitral Tribunal a jurisdictional decision, or a decision on the substance of the parties' dispute?
Observations by Michael Polkinghorne and Matthew Secomb
SCC Case 93/2004
Arbitral Award Rendered on 22 September 2005
SUBJECT- MATTERS:
1) Jurisdiction under a Bilateral Investment Treaty.
2) Application of the principle of iura novit curia and failure of Respondent to appear (procedural default).
3) Application of the fair and equitable treatment standard.
4) Reimbursement of moral damages.
Observations by Jeremy Wilson
(1) SCC Case 126/2003
Final Arbitral Award Rendered on 29 March 2005
SUBJECT- MATTERS:
1) Is the Energy Charter Treaty (ECT) applicable to a company registered in Gibraltar?
2) Are the conditions for application of Article 17 (1) of the ECT present?
3) The potential res judicata effect after the domestic litigation and the UNCITRAL Arbitration.
4) Doctrine of collateral estoppel.
5) Whether Petrobart qualifies as an investor under the ECT?
6) Did Petrobart make an investment in the Kygryz Republic?
7) Whether the Kyrgyz Republic violated its obligations under
Articles 10(1), 10(12), 13(1) and 22(1) of the ECT.
Observations by Georgios Petrochilos and Noah Rubins
(2) Case No. T 3739-03
Decision of the Svea Court of Appeal, Judgment Rendered on 13 April 2006
SUBJECT- MATTER:
Action for amendment of an arbitral award
(3) Case No. T 5208-05
Decision of the Svea Court of Appeal
Judgment Rendered 19 January 2007
SUBJECT- MATTER:
Challenge to an arbitral award
(4) Case No. T 2113-06
Decision of the Swedish Supreme Court
Judgment Rendered 28 March 2008
SUBJECT- MATTERS:
1) Challenge of an arbitral award terminating the arbitration for lack of jurisdiction.
2) The scope of application of the so-called "doctrine of assertion" in arbitration.
(5) The Petrobart Saga
By Erik Karlsson
(6) Comments on the Swedish Supreme Court's Recent Judgment on the So-Called "Doctrine Of Assertion" and the Arbitrators' Jurisdiction in Investment Disputes
By Paulo Fohlin
(7) Comments on the Petrobart Limited v. The Kyrgyz Republic Case
Anonymous
SCC Arbitration V (080/2004)
Arbitral Award Rendered in Stockholm on 21 April 2006
SUBJECT- MATTERS:
1) Do the Claimants (two Belgian physical individuals) who own shares in a company incorporated in Belgium, BI, which owns assets in the territory of the Russian Federation qualify as investors within the meaning of the Luxembourg/ Belgium-Russia BIT (the Treaty)?
2) Have the Claimants carried out an investment within the meaning of the Treaty?
3) To what extent can the Claimants rely on the most favoured nation (MFN) clause contained in the basic Treaty to import a more favourable dispute settlement mechanism contained in a third party treaty concluded by the Russian Federation to establish the jurisdiction of the Arbitral Tribunal?
Observations by Domenico Di Pietro
ICSID Case No. Arb/04/15
Arbitral Award Rendered on 13 September 2006
SUBJECT- MATTERS:
1) Challenge of the Tribunal's jurisdiction grounded on the fact that the relevant BIT limited recourse to international arbitration for claims of expropriation only.
2) Indirect expropriation.
3) The scope of application of Most Favoured Nation clauses.
4) Allocation of costs.
Observations by Domenico Di Pietro
ICSID Case No. Arb/99/7
Decision of the Ad Hoc Committee on the Application for
Annulment of the Award Rendered on 1 November 2006
SUBJECT- MATTERS:
1) Annulment under Article 52 of the ICSID Convention.
2) Jurisdiction and definition of investment under a Bilateral Investment Treaty.
3) Jurisdiction and definition of investment under the ICSID Convention.
Observations by Reza Mohtashami
UNCITRAL Arbitral Award on Jurisdiction
Rendered in Washington, D.C., U.S. on 28 January 2008
SUBJECT- MATTER:
Jurisdiction of Tribunal to hear a claim brought under Chapter Eleven of the NAFTA (North American Free Trade Agreement). Territorial location requirement for protected investments and investors.
Observations by Jean-François Hébert
(1) SCC Case V (024/2007)
Award on Preliminary Objections Rendered on 20 March 2009
SUBJECT- MATTER:
Whether the arbitral tribunal has subject-matter jurisdiction under Articles 10 and 5 of the Spain/Russia BIT, whether it has personal jurisdiction over the seven claimants, whether the claimants had made investments and, if so, whether their claims are admissible.
(2) Yukos and Some of Its Progeny
By Lucia Raimanova
ARTICLES
By Helge Elisabeth Zeitler
By Annie L. Phillips
By Max Gutbrod and Steffen Hindelang
By Luke Eric Peterson
By John Savage and Elodie Dulac
By Thomas Eilmansberger
INDEX