On 18 February 2022, the French-speaking Brussels Court of First Instance set aside an award (“Award”) issued by an investment arbitration tribunal (the “Tribunal”) that held that the Republic of Poland (“Poland”) had denied the investor justice. I. Factual Background of the Investment Dispute[1] During the 2000s, a privately owned Polish real estate developer (the “Developer”) started multiple projects in Krakow, Poland. These included the construction of residential apartment blocks in two estates: Kijowska Estate and Wierzbowa Estate. The Developer secured potential buyers, State bank loans ..read more

Olin Holdings Ltd. v. State of Libya, No. 21-CV-4150 (S.D.N.Y. Mar. 22, 2022)[1] In the 1990s, Libya made a number of legislative changes to foster foreign investment. This included entering into a number of Bilateral Investment Treaties, one of which was with Cyprus (the “BIT“). The BIT included a dispute resolution provision that allowed disputes between one of the countries and an investor from the other country to be submitted to a court where the investment was being made or to arbitration before the International Chamber of Commerce (the “ICC”) in Paris. At the end of 2006, Olin Holdings ..read more

On March 21, 2022, ICSID´s Member States approved the long-awaited amendments of ICSID´s Regulations and Rules, after a consultation process of more than 5 years with member States and the international arbitration community, and after the publication of six Working Papers. This is the fourth time that the ICSID Rules have been amended and according to ICSID it is the “most extensive review to date.”[1] The 2022 ICSID Regulations and Rules will become effective on July 1, 2022. These amendments cover the following: Regulations and Rules for ICSID Convention Proceedings: which include ICSID Ad ..read more

One year ago, the Higher Regional Court Frankfurt decided that the Achmea-decision[1] by the Court of Justice of the EU (“CJEU“) is transferable to arbitration clauses in other BITs (see Global Arbitration News on 22 April 2021). Factual Background Two banks who provide financial services in the Croatian market (= the investors) had initiated arbitration proceedings against Croatia based on the BIT between Croatia and Austria. Croatia sought a declaration that the arbitration proceedings were inadmissible and was successful: the Higher Regional Court held that the arbitration clause in the BIT ..read more

In State of Libya v. Nurol Insaat Ve Ticaret Anonim Sirketi,[1] the International Commercial Chamber of the Paris Court of Appeal was called upon to rule on the lack of jurisdiction of an arbitral tribunal due to the alleged corruption practices that tainted the contracts constituting the investment that was the subject of the dispute. Factual Background Between 2006 and 2009, the Turkish company Nurol Insaat Ve Ticaret Anonim Sirketi (“Nurol“) entered into several agreements and amendments of these agreements with African Engineering Projects Company (“AEPC“), incorporated under the law of Li ..read more

Background On 9 March 2021, the latest Singapore-Indonesia Bilateral Investment Treaty (the “BIT“) entered into force and updates the countries’ investment protection framework vis-a-vis each other. This BIT was previously signed on 11 October 2018 with the goal of promoting stronger economic ties and cooperation between the countries, and replaces the previous Singapore-Indonesia Bilateral Investment Treaty which had entered into force on 21 June 2006 and expired on 20 June 2016 (the “Previous BIT“). Singapore and Indonesia have historically maintained strong trade ties with each other. Despi ..read more

We are pleased to introduce the third part of our trilogy of brief commentaries on Investment Treaty Protection & Covid-19 driven State Intervention. In Part I, we saw that states had taken invasive measures in response to the COVID-19 pandemic; some of those could give rise to significant claims, discussed in Part II. The present Part III is devoted to the defences, which the host states may use to respond to the potential investors’ claims against the measures. Between May and December 2020, fifty-two countries and the European Union took 96 investment policy measures in response to the ..read more

On April 22, 2021 the Advocate General issued its opinion in the proceedings before the Court of Justice of the EU (“CJEU“) under case file no. C-109/20[1] (“Opinion“). The Advocate General dealt with the question whether an EU Member State can implicitly agree to investment arbitration under a BIT if the EU Member State fails to object to the jurisdiction of the Tribunal. The Advocate General concluded, taking into account the Achmea Judgment,[2] that such an implicit arbitration agreement would only be compatible with EU law if two conditions are fulfilled: firstly, the award must be subject ..read more

In its Achmea-decision,[1] the ECJ decided that EU member states must not settle their disputes in arbitration proceedings agreed upon in bilateral intra-EU investment treaties (here: the BIT between the Netherlands and Slovakia) (see https://www.globalarbitrationnews.com/ecj-stops-investment-arbitration-intra-eu/). The Higher Regional Court Frankfurt recently had to deal with the question whether the ruling in Achmea is transferable to other intra-EU-BITs, namely the BIT between Croatia and Austria.[2] In this case, the investors argued that the Achmea-decision was based on specific cons ..read more

On March 3, 2021 the Advocate General issued its opinion in the proceedings before the Court of Justice of the EU (“CJEU“) under case file no. C-741/19[1] (“Opinion“) in favour of the CJEU’s jurisdiction over a request for preliminary ruling to interpret the Energy Charter Treaty (“ECT“) in a case concerning two non-EU parties. Furthermore, the Advocate General presented its view that the offer to arbitrate in the ECT should be considered incompatible with EU law in case of intra-EU proceedings. Background facts The case is connected to an ad hoc arbitration held under UNCITRAL Arbitration Rul ..read more