STATE-TO-STATE ARBITRATION PURSUANT TO BILATERAL INVESTMENT TREATIES: THE ECUADOR-US DISPUTE

by Marcin Orecki*

This paper presents the state-to-state arbitration between the United States (US) and Ecuador that was a consequence of an investor-state arbitration in the Chevron case (both arbitrations pursuant to the US-Ecuador Bilateral Investment Treaty (BIT)). The questions inter alia were whether a dispute between the US and Ecuador existed at all and whether silence on behalf of the US alone could create a positive opposition in order to determine the existence of a dispute. However, one of the most important issues in the case was an alleged attempt by Ecuador to re-litigate the arbitral award of the Chevron case, and, if that were possible, to create an appellate jurisdiction of the state-to-state arbitral tribunal. This kind of jurisdiction would be contrary to the BIT`s object and purpose and would risk destabilizing the
international adjudicatory system. The arbitral tribunal resolved the dispute on 29 September 2012. However, as the award is not available to the public, the outcome is unknown. After evaluating the arguments, it must be noted that each argument raises doubts and the solution to this case is not straightforward. However, the arguments presented by the US, especially the policy arguments connected with investment law and arbitration principles such as depoliticization, seem to be more convincing.

Download PDF: State_to_State_Marcin_Orecki_10_02_201 (750 kb)

 

* LL.M. candidate (Geneva LL.M. in Int’l Dispute Settlement [MIDS], 2013); MA in Law (2012, University of Warsaw). I would like to thank Mr. Michele Potestà and Ms. Elizabeth Boomer for comments on an earlier draft of this paper.

“International Commercial Arbitral Awards: Moving from Secrecy towards Transparency?”

by M. Florencia Villaggi

A large portion of International Commercial Arbitral Awards in different jurisdictions are unpublished. The public only has access to them when they are challenged in a judicial court. The majority of arbitration users highly value the confidentiality of the awards, but at the same time there are substantial benefits from its public disclosure.

This essay focuses on whether it would be beneficial to promote the publication of International Commercial Awards; and if it is the case, how such publication could be conducted in order to reconcile it with the user’s expectations of confidentiality. When confidentiality is not specified in the arbitration agreement, its existence and scope varies in light of the different standards that may regulate it. Therefore, the essay starts by analysing the treatment given to the issue in institutional arbitration rules, domestic legislation and case law. It continues to discuss the arguments both pro and against mass publication of International Commercial Awards. And lastly, it concludes that an increase in publication of awards is desirable, but it should not be achieved through the expense of completely depriving arbitration users of their confidentiality. The author therefore proposes a compromising solution to reconcile both interests at stake, by the implementation of a mechanism that would promote publication of International Commercial Awards with minimal impact on the parties’ confidentiality expectations. Publication of arbitral awards in the proposed way could bring greater transparency to the system, strengthen the fairness and quality of arbitrators, proceedings and awards, and contribute to the development and evolution of arbitration.

Download PDF: Villaggi-confidentiality-vs-publication-of-awards-edited05_01_13.pdf (378 kb)

Is the Legitimacy Crisis in the Eye of the Beholder?

by SANTIAGO GARCES JARAMILLO

Essay presented on the Topic: “How Do We Design for Legitimacy?” for The University of Miami School of Law and Young ICCA full-tuition scholarship competition.
March 2012

This essay examines the current state of affairs regarding Ecuador’s challenge to the legitimacy of the international investment arbitration system following the tension created by the Lago Agrio domestic litigation and the related international arbitration under the US-Ecuador BIT. The essay reflects on Ecuador’s precise submissions to the legitimacy debate while providing support for the literature in the defense of the current system of investor-state arbitration. After analyzing the detailed reasons for Ecuador’s current critique; and finding them to respond mostly to endogenous factors related to the country’s new mandates under the 2008 Constitution, this essay attempts to provide a design for legitimacy through treaty drafting and negotiation for the Country’s future participation in the international investment arbitration scenario.

 

Download PDF: SGJ_Legitimacy_Essay.pdf (253 kb)

 

Switzerland’s Department of Foreign Affairs endorsed Federal Supreme Court decision (BGE 136 III 379) not to lift Bank of International Settlement’s (BIS) immunity due to an attempt of NML Capital to freeze $300m (£186m) on Argentina’s bank accounts.

by: Dimitrij Euler, MLaw, PhD Candidate, University of Basle, Switzerland.

Obtaining an award is only half way through; the final step – i.e. to enforce the award or verdict – will be the cherry on the cake. Immunity of states and state entities challenges councils for claimant after investor-state arbitration. Successful claimants against Argentina are facing difficulties to enforce their debts adjudicated in awards and verdicts. In very creative attempts, lawyers enforce debts against boats, airport facilities and assets of international organisations. Numerous international organisations have their seat in Switzerland and enjoy extensive immunities. A limitation of the immunity would set an unfortunate precedent for Switzerland.

Continue reading Switzerland’s Department of Foreign Affairs endorsed Federal Supreme Court decision (BGE 136 III 379) not to lift Bank of International Settlement’s (BIS) immunity due to an attempt of NML Capital to freeze $300m (£186m) on Argentina’s bank accounts.

Saudis seek private arbitration court in London

In an attempt to attract foreign investment and build investor confidence, Saudi Arabia is planning to lobby the UK government to set up a confidential arbitration court in London that would hear commercial disputes relating to the Middle Eastern Kingdom.  The Saudi Government is aiming to attract former members of the UK judiciary and other leading figures in the legal industry to sit on the putative arbitration panel.  Saudi Arabia hopes that the establishment of this specialist arbitration court, in addition to the country’s extensive reform of its domestic arbitration system, will lead to a flood of foreign investment into the country and boom in international trade.

 

The Saudis’ intentions raise several questions, including, amongst others, whether the establishment of such a court is necessary and why existing institutions cannot be used instead.  What do you think?