By Kassi Tallent (Counsel, Crowell & Moring LLP, Washington, D.C.)
In general, an international arbitral tribunal does not sit in the same situation as a domestic court, or even an international court, when it comes to the determination and application of law. To begin with, a court undoubtedly has the authority to apply the law under its jurisdiction ex officio, and even in many cases to actively participate in the development of the law. On the other hand, an arbitral tribunal is generally constituted only to apply the law to the specific dispute before it, and subject to the confines of the parties’ agreement on the submission of their dispute to arbitration. Furthermore, international arbitral tribunals, unlike national courts, do not have a particular domestic forum; and their members, unlike the members of most international courts, are not ordinarily required to meet a minimum threshold of expertise in international law.
Continue reading When Is Law Really “Law” in International Arbitration?
By Muhammad Mustaqeem de Gama (Director: Legal International Trade and Investment at the Department of Trade and Industry of South Africa) and Rafia de Gama (Lecturer: University of South Africa)
The Cabinet decision of 20 July 2010 specified that an inter-ministerial work group should commence work on an investment protection act for South Africa. Such an act would incorporate, codify and interpret core international law concepts that have been subject to conjecture and dispute in international investment arbitrations and clarify the level of protection that investors may expect in South Africa.
The draft Promotion and Protection of Investment Bill (hereinafter “the Bill”) clarifies the international investment law concepts of national treatment, expropriation, compensation and transfer of funds in line with South African constitutional principles. The Bill also seeks to achieve several balances, including the rights and obligations of investors, to provide adequate protection to foreign investors, to ensure that South Africa’s constitutional obligations are upheld, and that government retains the policy space to regulate in the public interest. This contribution will concentrate on expropriation and compensation under South African law.
Continue reading Standard of Expropriation and Compensation under South African law
By Amel Abdallah (Assistant professor at College of Law –Sultan Qaboos University-Oman)
Sultanate of Oman has shown an increased willingness to attract foreign investment by updating its legal environment. In particular, Omani courts have recognized that public entities can validly enter arbitration agreements with private entities. In doing so, any disputes arising out of a contract underlying the arbitration agreement will be subject to arbitration rather than to the Omani courts.
The first step in changing the legal landscape was in 1994, with the adoption of Article 14 of the Omani Foreign Capital Investment Law (“OFCIL”). This law permitted disputing parties to settle their disputes by arbitration (Art. 14 Royal Decree No. 102/1994: “It may be agreed to refer any dispute between the foreign investment projects and third parties to a local or international arbitration tribunal.”). Moreover, the new law was an exception to Omani civil and commercial procedure law OCCPL, which required all disputes with Omani nationals to be resolved by Omani courts (see Art. 29 Omani civil and commercial procedure law –Royal Decree 29/2002).
Continue reading Arbitration in Administrative Disputes in Oman