Recent Developments in ICSID Arbitration: Too Early to Jump Ship

By Wamiq Chowdhury

This essay was written as a response to two prompts provided for the Miami/Young ICCA Scholarship Competition. The two prompts were: “Recent developments in ICSID arbitration – time to think about alternatives?” and “How Do We Design for Legitimacy?”

The International Centre for the Settlement of Investment Disputes (ICSID) is experiencing growing pains. As recourse to ICSID arbitration in order to resolve foreign investment disputes becomes more common, ICSID jurisprudence is beginning to raise concerns on a number of fronts about the legitimacy of the system, and whether it will remain a viable method of settling investment disputes in the long term. This paper begins by exploring ICSID’s design, why legitimacy matters to ICSID, and what it means to say that ICSID’s legitimacy is in doubt. It then examines a number of different developments that are presenting challenges to ICSID’s legitimacy: inadequately reasoned awards, inconsistencies in awards and annulment decisions, and potentially problematic interpretive practices of ICSID tribunals with regards to essential security clauses, umbrella clauses, and treaty shopping. After assessing the challenges posed by these developments, the paper urges caution in determining the extent to which ICSID’s legitimacy has been affected by said developments. It argues that the challenges may seem greater at present than they in fact are. It also proposes some less far-reaching solutions for enhancing ICSID’s legitimacy than are being discussed in the investment arbitration community at present.

Continue reading Recent Developments in ICSID Arbitration: Too Early to Jump Ship

Gauging the Tension Between Finality and Fairness in Arbitration: An Assessment of the Scope and Limits of “Correction” and “Interpretation” of Final Awards

By Shalini Soopramanien

“And therefore, as when there is a controversy in an account, the parties must by their own accord, set up for right Reason, the Reason of some Arbitrator…to whose sentence they will both stand, or their controversy must either come to blowes, or be undecided, for want of a right Reason constituted by Nature; so is it also in all debates of what kind soever.”

Thomas Hobbes

Continue reading Gauging the Tension Between Finality and Fairness in Arbitration: An Assessment of the Scope and Limits of “Correction” and “Interpretation” of Final Awards

Drafting an Arbitration Agreement for Contracts Related to Saudi Arabia By Abdulrahman Hammad

While much has been written about the enforceability of arbitral awards, foreign and domestic, in The Kingdom of Saudi Arabia (“The Kingdom”), articles seldom advise on the practicalities of drafting international arbitration agreements recognizable and enforceable by The Kingdom’s courts. Generally, such agreements are added to contracts entered into with a domiciliary of The Kingdom, or contracts the principal place of performance of which is within the territorial boundaries of The Kingdom. This article will focus on effectively drafting an arbitration agreement (also known as an arbitration clause) for contracts relating to The Kingdom. It will address the relevant issues to be reviewed in such agreements, and conclude with a sample agreement for Saudi-related contracts. It will not focus on the enforcement or scope of review of arbitral awards by Saudi courts.

Continue reading Drafting an Arbitration Agreement for Contracts Related to Saudi Arabia By Abdulrahman Hammad

Tax Gross-Up Claims in Investment Treaty Arbitration by Nhu-Hoang Tran Thang

RECENTLY, INVESTORS HAVE CLAIMED “TAX GROSSED-UP DAMAGES”, or a  damage amount that takes into account the eventual taxation of the award by the defending State. Unfortunately, arbitral tribunals facing this issue have not yet seized the opportunity to express their views on the appropriateness of such claims in investment treaty arbitration[2]. The paucity of authority in both international doctrine and jurisprudence is not surprising. Not only are claims for tax gross-up in contemplation of future taxation recent, but the topic also calls for overlapping considerations of international law (where the legal basis for compensation of investors is to be found), national law of the host State (according to which tax consequences need to be assessed), complex economic calculations (which are sometimes beyond law practitioners’ and arbitrators’ full comprehension), as well as political considerations inherent to any mixed arbitration involving a sovereign State. This article attempts to identify the underlying arguments for such claims and draw the attention of practitioners and arbitrators to an issue that they are likely to face more frequently in the future.

Continue reading Tax Gross-Up Claims in Investment Treaty Arbitration by Nhu-Hoang Tran Thang