The prohibition of discriminatory, unreasonable and/or arbitrary measures affecting investors’ investments normally figures among the protection standards provided by bilateral or multilateral investment treaties. Although it is considered as an independent basis for a finding of State responsibility, some arbitral tribunals have considered that the standard of protection against arbitrariness or discrimination is closely linked […]
Intra-EU Investment Arbitration: Impact of EU Member States’ Declarations in the Wake of Achmea
In Achmea,[1] the Court of Justice of the European Union (CJEU) was asked to assess the compatibility of the dispute resolution clause contained in the Netherlands-Slovak Republic BIT with EU law. In March 2018, the CJEU held that the clause was incompatible based on the threat posed to the constitutional structure and autonomy of the […]
Time Limitations and Stale Claims in Investment Arbitration
Investment arbitration sometimes deals with legal issues that are particularly well-rooted in national laws, whereas their application at the international level is less evident. One of these issues revolves around the concept of time limitations. In fact, host States of investment might build their defence based on this concept, arguing that investors’ claims are stale, […]
Fork in the Road Provision in Investment Arbitration
The fork in the road provision, or Electa una via, non datur recursus ad alteram (English translation: “when one way has been chosen, no recourse is given to another”[1]), belongs to a category of jurisdiction-declining provisions[2] marking “the relationship between international arbitration and adjudication by domestic courts.”[3] However, it should be noted that certain tribunals have […]
ICC as Appointing Authority in UNCITRAL or Other Ad Hoc Arbitration Proceedings (2018 ICC Rules)
International arbitration is governed by a cornerstone principle, the principle of consent. This means that parties are free to include, by mutual consent, an arbitration agreement in their contract. By the same token, they can organize such arbitration proceedings by choosing either an ad hoc arbitration or an arbitration administered by an institution. Nonetheless, the […]