The International Centre for Settlement of Investment Disputes (ICSID) is pleased to announce the AnnualICSID Review—Foreign Investment Law Journal Student Writing Competition.
Investor–State arbitration: highest number of new cases ever. $8 million spent on lawyers and arbitrators in an average case
In 2012, 58 new known investor–State dispute settlement (ISDS) cases were initiated (stated in the 2013 World Investment Report by UNCTAD). This brings the total number of known cases to 514 and the total number of countries that have responded to one or more ISDS cases to 95. The 58 cases constitute the highest number of known ISDS claims ever filed in one year and confirm foreign investors’ increased inclination to resort to investor–State arbitration.
On March 15, 2011 the new version of the Order of protecting the rights and interests of Ukraine during the disputes, before the foreign jurisdictional authorities in cases involving a foreign entity and Ukraine came in force. The Order was approved by the Decree of the President of Ukraine.
ICSID announces its tribunal’s award in Global Trading Resource Corp. and Globex International, Inc. v. Ukraine case. The claim is commercial, not the investment one!
On December 1, 2010 the arbitration tribunal of the International Centre for Settlement of Investment Disputes announced its final award in Global Trading Resource Corp. and Globex International, Inc. V. Ukraine case.
The Tribunal found that Ukraine conducted the expropriation of Alpha Projektholding’s rights and interests in the 1998 and 1999 Joint Activities Agreements in violation of Article 4 of the the Agreement for the Promotion and Reciprocal Protection of Investments between the Republic of Austria and Ukraine (Compensation for Expropriation) and denied fair and equitable to Claimant’s investments in violation of Article 2 of the UABIT (Protection and Promotion of Investments).
However, the Tribunal ruled that Ukraine had not violated Article 8 of the UABIT (Other Obligations) and the national treatment obligation in Article 3 of the UABIT with respect to claimant’s investments. The recognition of violation of the Ukrainian Foreign Investment Law was declined as well.
Ukraine has been ordered to pay USD 2,979,232 with additional interest accruing from July 1, 2004, at a rate of 9.11 percent compounded annually. As stated in the Award, if payment were made on December 31, 2010, total damages owing as of that date would be USD 5,250,782.
International arbitration is a very tricky area, there are too many peculiarities so that even an academic course in this field is only a small amount of knowledge that the practitioner should have. We are often asked by young lawyers starting their practice in arbitration about the general information that could help them to have a general picture of what is arbitration.
On March 19, 2010 two members of an ICSID arbitral tribunal – the Honourable Davis R. Robinson (President) and Dr. Stanimir A. Alexandrov – dismissed the Ukraine’s challenge to the tribunal’s third member, Dr. Yoram Turbowicz, reported Investment Treaty News.
Arbitral proceedings between Alpha Projektholding GMBH (Alpha) and the Ukraine began in 2007 after the Austrian company alleged violations of the Austria-Ukraine BIT in relation to its investment in a hotel-development project in Kiev in the mid-1990s.
“A State may not expropriate or otherwise
take in whole or in part a foreign private
investment in its territory, or take measures
which have similar effects, except …”
1992 World Bank Guidelines
on the Treatment of Foreign Direct Investment
Recently the Olympic Entertainment Group (OEG) – a Baltic group of company operating casinos in many countries – announced its intention to institute arbitration proceedings against Ukraine (http://www.kommersant.ua/). The ground for filing the claim may be the measures of the state resulted in prohibition of gambling in Ukraine. Respective law was adopted on 15 May 2009 and introduced on 25 June 2009. The above announcement was made on 10 March 2010, and already caused different comments regarding the possible outcomes of the case. Some of my colleagues believe that the Group has no chance to win because the measure were introduced by law, and that law was not challenged before the Constitutional Court of Ukraine. However, there is an alternative opinion, that the mentioned circumstance (no case against the above law in the Constitutional Court) may not be treated as decisive for the tribunal.
By almost any account, arbitration has enjoyed its golden age in the last decades. International commercial arbitrations have soared, arbitrations under bilateral investment treaties have grown, and arbitration of purely domestic matters, especially in the United States, has received increased acceptance. Yet several recent signs suggest that the sun has begun to set on that golden age. Courts have erected some previously unseen barriers to international arbitration. Criticism has been leveled at various aspects of traditional Bilateral Investment Treaties (BITs) and nations have withdrawn from ICSID. And in the United States, Congress currently is considering the most sweeping reform of the Federal Arbitration Act since its enactment.
There are 49 ICSID claims lodged against Argentina and only 10 against Ukraine. Who is talking about inappropriate investment climate?
An overview of the investment disputes settlement mechanism under ICSID Convention
One of the chief impediments to foreign investment in Ukraine as well as in other developing countries has been the investor’s perception that, in the event of disputes with the host state, they would find themselves without an effective legal remedy. Investors may no longer realistically rely on their own governments to espouse their claims, at least promptly and successfully, under traditional avenues of diplomatic protection. Investors who proceeded alone against host states, feared discrimination in the local courts. Legal disputes between individuals or corporations were normally settled before domestic courts. States may settle their legal disputes before the International Court of Justice. However, in mixed disputes, especially arising from international investment relationships, no appropriate forum was seen to exist.