Challenges to the Assessment of Damages Claims Involving Crypto-Assets in Investment Arbitration

Global Jurist ◽  
2020 ◽  
Vol 20 (2) ◽  
Author(s):  
Aveek Chakravarty
Keyword(s):  
International Law ◽  
International Investment ◽  
Foreign Investments ◽  
Investment Protection ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Asset Classes ◽  
Distinct Features

AbstractThis article addresses the particular challenges involved in valuing various types of crypto-assets as investments under treaty-based investment arbitration. The interaction of the international investment protection regime with crypto-investments has largely remained un-examined, even though increasing amounts of foreign investments have flown into the development of crypto-assets its related markets. The existing investment treaty regime is set to face significant challenges in grappling with crypto-assets as investments due to several distinct features that differentiate them from traditional asset classes. This issue is explored further in the article from the perspective of the principles governing damages under international law.

THE UNIDROIT PRINCIPLES OF INTERNATIONAL COMMERCIAL CONTRACTS AND INVESTMENT TREATY ARBITRATION: A LIMITED RELATIONSHIP

2015 ◽  
Vol 64 (4) ◽  
pp. 905-933
Author(s):  
Jarrod Hepburn
Keyword(s):  
International Law ◽  
Public Law ◽  
Private Law ◽  
Applicable Law ◽  
Investment Protection ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
General Principles Of Law ◽  
Domestic Law ◽  
Investment Treaty Arbitration

AbstractThe UNIDROIT Principles of International Commercial Contracts have appeared in a small but steady trickle of investment treaty arbitrations over the last decade. This article considers the use of the Principles by investment tribunals on questions of both domestic law and international law. It suggests that reference to the Principles can play an important legitimating role on questions of domestic law, but that this should not replace reference to the applicable law. On questions of international law, reference to the Principles may be justified by resort to the general principles of law. However, the article contends that there is only a limited role for the UNIDROIT Principles where the primary and secondary rules of investment protection are already found in treaties and custom. In addition, while general principles have historically been drawn from domestic private law, there is increasing recognition that general principles of public law are more relevant to investment arbitration. Given this, arbitrators resolving questions of international law must be cautious in references to the UNIDROIT Principles, a quintessentially private law instrument.

International Investment Arbitration

2017 ◽  
Author(s):  
McLachlan Campbell ◽  
Shore Laurence ◽  
Weiniger Matthew
Keyword(s):  
International Law ◽  
Present State ◽  
Critical Review ◽  
International Investment ◽  
Comprehensive Description ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Author Team ◽  
Substantive Law ◽  
Investment Treaty Arbitration

This is the long-awaited second edition of this widely-referenced work on the substantive law principles of investment treaty arbitration. It forms a detailed critical review of the substantive principles of international law applied by investment arbitration tribunals, and a clear and comprehensive description of the present state of the law. The first edition met with immediate success as a result of the authors’ achievement in describing and analysing the volume of law created, applied and analysed by tribunals. The second edition is fully updated to take account of the arbitration awards rendered in the period since 2007. Written by an internationally recognised author team, it is now the most comprehensive and up to date work in its field and no practitioner or academic can afford to be without it.

ICSID Arbitration and the Importance of Public Accountability of a Private Judicature – A Roman Law Perspective

2007 ◽  
Vol 9 (1) ◽  
pp. 59-102 ◽  
Author(s):  
Frederic Gilles Sourgens
Keyword(s):  
International Law ◽  
International Investment ◽  
Civil Procedure ◽  
Customary Law ◽  
Roman Law ◽  
Public Accountability ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Investment Law

AbstractThis article explores the problems of public accountability in current investment law practice. These problems arise from the private interpretation of international investment treaty and customary law in arbitration. It analyses these problems through the historical lens of Roman law and the Roman law tradition in international law. It suggests a Praetorian system of international accountability and explores the remarkable similarities between current investment arbitration and classical Roman civil procedure.

The Vienna Convention as Authority for the Use of Precedent as Customary Practice in International Arbitrations of Oil Concessions and Investment Disputes in North Africa and the Gulf Arab States; or a Lex Mercatoria for a Lex Petrolea

2013 ◽  
pp. 918-940
Author(s):  
Mary B. Ayad
Keyword(s):  
International Law ◽  
International Investment ◽  
Customary Law ◽  
Vienna Convention ◽  
Commercial Arbitration ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
General Principles Of Law ◽  
Western Law ◽  
Lex Mercatoria

General principles of law are a valid source of law for arbitral tribunals. The Vienna Convention1 allows recourse to general principles of law. In Bilateral Investment Treaty (hereinafter “BIT”) interpretation but also in International Commercial Arbitration (hereinafter “ICA”)/International Investment Arbitration (“hereinafter “IIA”), arbitrators can be guided by the Vienna Convention2 and in so doing may refer to a number of ‘rules’ and norms of ‘international law’ applicable to the relations between states, such as those mentioned herein including principles drawn from the lex mercatoria or other types of international customary law, e.g. the principle of pacta sunt servanda, which honours contracts between states and investors, as well as the principle of precedent. Additionally, they may refer to customary norms from other jurisdictions that can harmonise with Western law.

Jurisdiction ratione temporis in International Investment Arbitration

2017 ◽  
Vol 16 (1) ◽  
pp. 139-158
Author(s):  
Andrea Gattini
Keyword(s):  
International Law ◽  
International Investment ◽  
Bilateral Investment Treaties ◽  
Public International Law ◽  
Provisional Application ◽  
International Investment Law ◽  
Investment Protection ◽  
Investment Arbitration ◽  
Investment Law ◽  
The Law

Issues concerning the temporal scope of jurisdiction of international investment arbitration tribunals are attracting increased attention due to recent events, such as the denunciation of the icsid Convention by some states, the denunciation of bilateral investment treaties from which the tribunals draw their jurisdiction, or the provisional application of other treaties concerning investment protection. The solutions offered by most arbitral tribunals are in line with international customary rules on the law of treaties, a point which deserves attention as further proof of the cohesiveness of international investment law with public international law.

PROTECTING ITALIAN INVESTMENTS IN LIBYA’S CHANGING ENVIRONMENT

2014 ◽  
Vol 23 (1) ◽  
pp. 147-172 ◽  
Author(s):  
Ferdinando Franceschelli
Keyword(s):  
Foreign Direct Investment ◽  
International Law ◽  
Armed Conflict ◽  
Direct Investment ◽  
International Investment ◽  
Trading Partner ◽  
Investment Protection ◽  
Investment Arbitration ◽  
The Relationship ◽  
Extensive Damage

Italy is both the main trading partner and the State that has the most sizeable foreign direct investment interests in Libya. However, the outbreak of armed conflict in Libya in 2011 resulted in extensive damage to Italian investors. In order to obtain proper redress Italian investors may seek to rely upon investment protection provisions contained in treaties previously concluded between these two States, notably the BIT of 2000 and the Treaty of Benghazi of 2008. Crucially, however, the outbreak of the armed conflict and the subsequent regime change that took place following the Gaddafi’s removal from power raise doubts about the effectiveness of such treaties. This article firstly reviews both the relevant rules of international law and the investment treaties in force between Italy and Libya. Then, it examines the relationship between Italy and Libya during and after the events of 2011 and comes to the conclusion that such treaties are still effective and as such Italian investors may invoke the provisions contained therein, including those envisaging resort to international investment arbitration.

A New Approach to the Law of Foreign Investments

2016 ◽  
Author(s):  
Vidal-León Christian
Keyword(s):  
Policy Decision ◽  
International Investment ◽  
Inclusive Process ◽  
Foreign Investments ◽  
New Approach ◽  
The Public ◽  
Investment Protection ◽  
Investment Arbitration ◽  
Domestic Investments ◽  
The Government

This chapter analyzes South Africa's decision to terminate its investment treaties and the underlying objectives of South Africa's new investment regime, namely: (1) reinforcing the ‘sovereign right to regulate in the public interest’; (2) doing away with international investment arbitration; and (3) placing foreign and domestic investments on an equal footing. It examines the standards of investment protection not explicitly laid down in the Promotion and Protection of Investment Bill 2013 and inquires whether these standards are otherwise protected by the constitution or other laws. The chapter concludes that whilst South Africa's policy decision on its investment protection regime is open to debate, the government has followed a comprehensive, transparent, and inclusive process, in which relevant stakeholders have been heard and with which they have engaged.

The New Gold Standard? Empirically Situating the Trans-Pacific Partnership in the Investment Treaty Universe

2016 ◽  
pp. 339-373 ◽  
Author(s):  
Wolfgang Alschner ◽  
Dmitriy Skougarevskiy
Keyword(s):  
High Standard ◽  
Trade Agreement ◽  
International Investment ◽  
Legal Analysis ◽  
Investment Protection ◽  
Brics Countries ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
International Investment Agreements ◽  
Investment Agreements

The Trans-Pacific Partnership (TPP) has been labeled a ‘new, high-standard trade agreement’. But just how ‘new’ and ‘high’ are the standards it sets? To answer that question we combine traditional legal analysis with computational text comparisons situating the TPP in the universe of international investment agreements (IIAs). We find that the TPP investment chapter offers few truly novel features — 81% of its text is taken from prior American treaties. Compared to the majority of IIAs, however, the TPP goes beyond existing practice: it sets high levels of investment protection, explicitly safeguards host state sovereignty and establishes a sophisticated investment arbitration architecture. Nevertheless, the TPP is unlikely to revolutionize the IIA universe. Its innovations are open to circumvention given that older treaties remain in force parallel to the TPP. Moreover, as disagreement persists with Europe and BRICS countries, the TPP is unlikely to serve as a template for future multilateralization.

Requirements for Amicus Curiae Participation in International Investment ArbitrationA Deconstruction of the Procedural Wall Erected in Joint ICSID Cases ARB/10/25 and ARB/10/15

2013 ◽  
Vol 12 (3) ◽  
pp. 365-390 ◽  
Author(s):  
Christian Schliemann
Keyword(s):  
International Law ◽  
International Investment ◽  
Recent Attempt ◽  
Arbitral Tribunal ◽  
Amicus Curiae ◽  
Legal Rules ◽  
Investment Arbitration ◽  
Legal Standard ◽  
Investment Law

Abstract The legal standard on amicus curiae participation in international investment arbitration has been forged by the judicial development of legal rules and, in parallel, the modification of normative sources, such as the ICSID Arbitration Rules. Current and future decisions by arbitral tribunals on the participation of amicus curiae in a given dispute must abide by this consolidated standard. In June 2012, the arbitral tribunal in Joint ICSID Cases No. ARB/10/15 and No. ARB/10/25 released a procedural order, rejecting an amicus petition. This Order contains various deviations from the applicable legal standard and severely restricts the options for amicus participation. The recent attempt to strengthen the legitimacy of international investment arbitration by allowing for greater amicus participation and the acknowledgement of the interdependence of investment law and other areas of international law is thereby put in peril.

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