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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
A
Amicable Settlement 148
Annulment of awards (ICSID) 179–187
Annulment Committee 180
Grounds for 181
Corruption of arbitrator 181
Failure to state reasons 183
Serious departure from fundamental rule
of procedure 182
Tribunal manifestly exceeded powers 181
Tribunal not properly constituted 181
Procedure 180
Anti-bribery and anti-corruption laws 33
Arbitrary impairment 73
Arbitration institutions 16, 123
Arbitration process 121–127
Choice of Forum 121
Ad hoc vs institutional arbitration 123
National courts vs investment arbitration 121
Exhaustion of local remedies 122
Fees and costs 125
Allocation between parties 126
Amount of 125
Types of 125
Multi-party and multi-claim disputes 124
Procedural steps 143
Roadmap 143
Rules 12
Scope of 13
Arbitrators 130–134
Challenges to 132
Law Firm Partners 133
Press comment 132
Views in academic publications 133
International Bar Association Guidelines on Conflict of Interest in International
Arbitration 132, 135
Qualifications 131, 142
Selection of 130, 142
B
Bifurcation 155–158
Factors considered 156
ICSID Rules 156
Procedure 156
Pros and cons of 157
Rationale for 155
Bilateral Investment Treaties
Advantages of 11
Criticism of 15
History of 11
C
CFIUS See Committee on Foreign Investment in the United States
Choice of Counsel 128–129
Criteria for selection 128
Developing a pool of candidates 128
Making the choice 129
Committee on Foreign Investment in the United States (CFIUS) 22 Conciliation 146–148
Process 147
Pros and cons 147
Consent to arbitration 88
Convention on Recognition and Enforcement of Foreign Arbitral Awards See New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards
Counterclaims 166–169
Consent to jurisdiction 167
Jurisdictional requirements 166
Merits 169
D
Damages 170–178
Costs 125, 176
Fair market value 173
Interest 175
Period of accrual 175
Rate of 175
Simple or compound 175
Limitations on recovery of damages 176
Role of experts 170
Standards of compensation 171
Breaches of investment treaties 172
Chorzow Factory case 172
Lawful expropriation 171
Valuation of 170
Valuing Incomplete and start-up businesses 174
Double taxation treaties 35
Capital gains 36
Dividends 37
Permanent establishment 36
Transfer pricing 38
E
Economic sanctions 32
Enforcement of judgments and awards 188–194
ICSID 191
ICSID awards 189
Non-ICSID 192
Non-ICSID awards 190
Sovereign immunity defense 191
Evidence 159–165
Burden of proof 163
Documentary 159
Document production 161
Good faith 162
International Bar Association Rules on the Taking of Evidence in International Arbitration 159
Redfern Schedule 162
Standard of proof 163
Tribunal’s discretion 163
Witness 160
Factual 160
Exhaustion of local remedies 100, 122
Expropriation 68
Indirect 68
Nature of 69
Requirements for lawful expropriation 69
F
Fair and equitable treatment 70
Fees and costs 125, 176
Foreign Direct Investment 20–31
Administrative requirements 22
Corporate Structures available for 24
Domestic laws 28
Exchange controls 26
Golden shares 25
Incentives 25
International treaties and contracts 28
Minimum investment periods 26
Performance requirements 27
Real estate controls 27
Remittance of profits 26
Reporting requirements 23
Restrictions on 21
Fork-in-the-Road 104, 123
Freezing Clauses 59
Full protection and security 53, 65, 70, 72
G
H
Home state laws 32–34
Anti-bribery and corruption laws 33
I
Initiation of claims 141–145
Constitution of tribunal 142
Filing of initial claims and defenses 142
First procedural meeting 143
Notice period 141
Pre-arbitration proceedings 141
Subsequent procedural steps 143
Insurance, political risk See Political Risk Insurance
Interim measures 149-154
Arbitration rules 149
Criminal proceedings 152
Interim measures against the government 151
National courts 150
Practical effects 150
Security for costs 153
International Bar Association
Guidelines for Conflicts of Interest in International Arbitration 132, 135
Rules on the Taking of Evidence in International Arbitration 159
International Centre for the Settlement of Investment Disputes (ICSID) 11, 12, 29, 51, 88, 122,
123, 131, 142
Additional Facility 12
Allocation of fees 126
Annulment 179
Arbitration rules 12, 130, 131, 142, 149, 150, 151,156
Bifurcation 156
Conciliation 147
Consent 89
Counterclaims 166
Interim measures 149, 150
Investment 90
Jurisdiction 88
Model Arbitration clause 58
National of another Contracting State 92
Recognition and enforcement of awards 189
Standards for disqualification of arbitrators 132
Third-party funding 137
Waiver of immunity from execution 62
International Chamber of Commerce
Arbitration rules 62
Arbitrators 163
International Court of Arbitration 16, 217–218
Mediation rules 147, 149, 150
International investment agreements 49–56
Advantages of 11, 12
Denial of benefits 51
Determining existence of 49
Dispute resolution 55
Host state exceptions 54
Implementation of 52
Nationality requirements 50
Legal entities 51
Natural persons 50
Pre-establishment protection 53
International Law Commission Draft Articles on the Responsibility of States for Internationally Wrongful Acts 109
Investment contracts 57–64
Choice of forum 58
International arbitration clause 58
Stabilization clauses 25, 59
Freezing clauses 59
Rebalancing provisions 60
Waiver of sovereign immunity 61, 191
Immunity from execution 62
Immunity from jurisdiction 61
J
Jurisdiction 88–96
Nature of investment 90
State v foreign national 91
Contracting state 91, 92
National of another contracting state 92
Temporal jurisdiction 97
Exhaustion of local remedies 100
MFN clause 101
Retroactive application 98
Time limits 102
Waiting periods 99
M
Mediation 146–148
Procedures 146, 147
Pros and cons 146
Minimum standard of treatment 70
Most-favoured-nation 77–85
Importation of provisions from other treaties 81
Procedural provisions 82
Substantive provisions 81
Objective and definition 79
Pre-investment or post-investment 77
Relevant tests 80
Differential treatment 80, 81
In like circumstances 80
Legitimate policy reason 81
N
National Investment laws 21
National treatment 77–85
Objective and definition 78
Relevant tests 78
Differential treatment 79
In like circumstances 78
Legitimate policy reasons 79
New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 11, 29, 188, 190, 192
P
Political Risk Insurance 40–46
Commercial insurers 42
Coverage issues 44
Public insurers 41
Types of coverage 42
Specialty products 43
Traditional products 43
Pre-investment issues 20
Dispute resolution mechanisms 28
Domestic investment laws 21
Foreign investment structures 24
Golden Shares 25
Incentives for foreign investors 25
Minimum investment thresholds 23
Protection of foreign investment 28
International treaties and investment contracts 28
Registration and approval 22
R
Re-balancing provisions 60
Recognition and enforcement of awards 188– 194 ICSID awards 189
Restrictions on foreign investment 21, 26
S
Seat of arbitration 48, 59, 63
Set-aside of non-ICSID awards 183
Grounds 184
Procedure 184
Stabilisation Clauses 59
State responsibility 109–113
Attribution to a state 110
State agencies and state-owned enterprises 110
Breach of international obligation 111
Internationally wrongful 111
Circumstances excusing wrongfulness 111
Legal consequences 112
Substantive Protection 67-76
Arbitrary Impairment 73
Fair and Equitable Treatment 70
Full Protection and Security 72
Most-favoured-nation See Most-favourednation National treatment See National treatment Umbrella clause 74
T
Tax Issues 35–39
Documentation 38
Methodology 38
Applicability of treaty after denunciation 102
Denial of benefits 103
Temporal exhaustion requirements 100
Fork-in-the-road 104
Preconditions 99
Reduction or elimination through MFN clause 101
Retroactive application of treaty 98
Composite acts 99
Continuing acts 98
Tax issues 103
Waiver 104
Third-party funding 135–140
Allocation and recovery of costs 135
Conflicts of interest 135
Jurisdiction 137
Security for costs 136
Trans-Pacific Partnership Agreement 69
Transparency 195–196
Mauritius Convention on Transparency 195
UNCITRAL Rules of Transparency 195
U
Umbrella clause 74
UNCITRAL
Arbitration rules 12, 126, 130, 138, 150, 167, 168, 195
Consent 167
Model Law on International Commercial Arbitration 184
Set-aside 184
Transparency rules 195
V
Vienna Convention on the Law of Treaties 68, 98, 102