Security for Costs in Investment Arbitration - Chapter 29 - Between East and West: Essays in Honour of Ulf Franke

Jakob Ragnwaldh, a Partner of Mannheimer Swartling, specializes in international commercial and investment treaty arbitration. Mr. Ragnwaldh sits as an arbitrator and acts as counsel in Swedish court proceedings. He is a board member of the SCC Institute.

Nils Eliasson is Head of Dispute Resolution Asia at Mannheimer Swartling, Hong Kong. He has acted as counsel in international commercial arbitrations and investment arbitrations under bilateral investment treaties and the Energy Charter Treaty. He holds a Ph.D. in Law from the University of Lund.

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Originally from Between East and West: Essays in Honour of Ulf Franke

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I. INTRODUCTION

For many years, investment arbitration has been one of the “hot topics” of international arbitration. Today, however, investment arbitration no longer qualifies as the “new thing” and the number of investment disputes is still growing. Representation of investors or States in investment arbitration will continue to comprise an important part of the international arbitration practice of firms specialized in this field. However, attracting investment arbitrations is not only prestigious for law firms, but also for arbitration institutes. The hosting of investment arbitrations or other arbitrations involving a State is a clear sign of confidence in any arbitration institute.

Ulf Franke and his colleagues at the Arbitration Institute of the Stockholm Chamber of Commerce (SCC) should be commended on their achievement in making the SCC a preferred seat of investment arbitration. With a total of 30 investment arbitrations, seven of which were registered in 2008, the SCC has attracted the second highest number of investment arbitrations of all arbitration institutes. Only the International Centre for Settlement of Investment Disputes (ICSID) has a larger number of investment arbitrations on its books. Part of this positive development for the SCC can be attributed to the fact that the Energy Charter Treaty (ECT), which entered into force in 1998, includes SCC arbitration as one of the dispute resolution options available to investors. So far, five ECT cases have been conducted under the auspices of the SCC. Despite the continuous development of investment arbitration, there are still many issues which have not yet been conclusively resolved, and probably never will be. The reason is that there is no uniform procedural or substantive law in this field. The primary source for the jurisdiction of the arbitral tribunal in an investment arbitration, as well as for the substantive rules to be applied, is the investment treaty applicable to the dispute. Since the applicable treaty (with a few exceptions such as the ECT and the NAFTA) generally will be one of the more than 2500 bilateral investment treaties (BIT) concluded between various States, it is easy to understand the potential diversity of this field of law.