[Part-I] Philip Morris v. Uruguay- Indirect Expropriation, Police Power, Trademarks and More.

The arbitral tribunal of Prof. Piero Bernardini (President), Mr. Gary Born, Judge Prof. James Crawford in Philip Morris v. Oriental Republic of Uruguay (ICSID Case No. Arb/10/7) has finally ruled on merits, dismissing the claims presented by Philip Morris (“PM”) and awarding costs to the tune of US$ 7 million to Uruguay. This award will have huge implications on the tobacco industry and countries like India who are seeking to regulate tobacco consumption through plain packaging measures as it was reportedly the first time a tobacco group had taken on a country for its anti-tobacco laws. Many are characterising Uruguay’s victory as something that will change the world.  In this post, I will only focus on the claim of expropriation and the other claims of denial of justice, fair and equitable treatment and impairment of use and enjoyment of investments will be discussed in subsequent posts. Read More »

Third Party Funding in International Arbitration: Problems & Recent Developments

By Shivansh Jolly

With the passing of time, the concept of third party funding in international arbitration has started attracting attention, and has consequently attained considerable significance. The concept involves providing monetary assistance by a third party (stranger to arbitration) to one of the parties to the concerned arbitration, generally supported by a formalized agreement laying down the terms and conditions governing the assistance provided.[1] Such agreements may entail a pre-decided incentive for a funder in the instance of a favourable award with respect to the party funded, such as remuneration to the extent of a fixed percentage of the award. The need for third party funding usually arises in cases where either the Complainant or the Respondent is financially incapable of bearing the expenses arising out of the dispute, more importantly, the costs following a possible adverse award. Another possible scenario which may invite third party funding may be an instance where a favourable result of a dispute benefits the funder in question, either directly or indirectly.Read More »

Corruption as a defense in International Investment Arbitration

By Shivansh Jolly*

The Issue

The developing jurisprudence in international investment arbitration has lately been confronted with the question of whether claims arising from contracts tainted with a blot of corruption in the international fora can be validly upheld. A classic example to describe such an instance would be where a private party in one country obtains a contract for infrastructural development in another country while illegally colluding with a minister of the host State which would prove decisive in the said contract being awarded to the concerned private party. With the contract being awarded and necessary investments being made in the host State, relationship between the parties reach a roadblock due to a possible reluctance of a new government regime to honour the terms of the tainted agreement in existence.

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Government of India is inviting Proposals for engagement of Law Firms for Investor-State Disputes

By Sarthak Malhotra

The Government of India is inviting foreign and domestic law firms for the purpose of representing it in disputes under the BITs and other investment protection agreements. For this purpose, the firms are requested to submit a technical and financial proposal before 5:00 PM, February 19, 2016.

india_bit_claims_against_IndiaAccording to the Request for Proposal Document, the scope of work for such law firms would include advising the Government on legal issues arising out of the arbitration proceedings and prepare strategies in whatever capacity chosen by the Government.Read More »

Iraq accedes to ICSID: Signed and Ratified

by Sujoy Sur

Iraq has finally acceded to ICSID, and the sigh of finality is resounding because it is the first globally recognised and followed international arbitration framework to which it has acceded to. The Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention) was signed today on behalf of the Republic of Iraq by H.E. Dr. Sami Raouf Al-Araji, Chairman of the National Investment Commission.[1]

ICSID Convention Signing_Iraq.jpg Read More »

The Bits of Bilateral Arbitration Treaties (BATs):: Reflections from Investor-State Dispute Settlement (ISDS)

By Sarthak Malhotra

Mr. Gary Born proposed the idea of a ‘Bilateral Arbitration Treaty’ in his keynote speech on the occasion of the Kiev Arbitration Days titled as “BITs, BATs and Buts”. He proposed that the states could establish a regime whereby the commercial contractual disputes between parties of each state would be submitted to arbitration by default.

Gary Born_Bilateral Arbitration Treaty(BAT)_Criticism_Summary
Courtesy: http://www.legalservice.co.uk

Consent in Investment Arbitration and BITs

Like any other form of arbitration, Investment Arbitration is typically based on the consent of the host state and the investor. However, there are some peculiarities involved which need attention. Read More »

UNCITRAL endorses Hague Principles on Choice of Law in International Commercial Contracts 

The United Nations Commission on International Trade Law (“UNCITRAL”) has endorsed Principles on Choice of Law in International Commercial Contracts (“Hague Principles”).  This decision was taken by UNCITRAL in its Forty-eighth session at Vienna( 29 June to 16 July 2015).Read More »