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- Preliminary Material
- Main Text
- I Introduction
- II History and Limitations of the Traditional System for Resolving Investment Disputes
- Preliminary Material
- A Harm Suffered by Foreign Investors
- B Barriers to Recovery by Foreign Investors
- C Traditional Remedies for Foreign Investors
- D Some Early Investment Protection Regimes
- E Limitations of Historic Dispute Settlement Processes
- III The Modern System of Investor-State Arbitration
- Preliminary Material
- A Origins
- B ICSID and Its Central Role in the Modern System of Investor-State Arbitration
- C Bilateral Investment Treaties
- D Multilateral Investment Treaties and Investment Chapters of Free Trade Agreements
- 3.22
- 1 North American Free Trade Agreement (NAFTA) and Its Successor
- 2 Energy Charter Treaty
- 3 The Dominican Republic–Central American–United States Free Trade Agreement
- 4 The Association of South East Asian Nations (ASEAN)
- 5 Multilateral Investment Agreements among Islamic Countries
- 6 Trans-Pacific Partnership Agreement (TPP), TPP-11, TTIP, and Other Agreements
- E National Investment Legislation
- IV Commonly Used Procedural Rules
- Preliminary Material
- A Introduction
- B ICSID Rules
- C UNCITRAL Arbitration Rules
- D Stockholm Chamber of Commerce Rules
- E International Chamber of Commerce Rules
- F Permanent Court of Arbitration
- G Comparison of the ICSID and UNCITRAL Rules
- 4.25
- 4.26
- 4.27
- 4.28
- 4.29
- 1 ICSID Convention Requirements and the ICSID Screening Role
- 2 Place of Arbitration
- 3 Language of Arbitration
- 4 Appointment of Arbitrators
- 5 Governing Law
- 6 Mechanisms for Early Dismissal of Frivolous Claims
- 7 Cost and Speed
- 8 Interim Measures
- 9 Emergency Arbitrator
- 10 Challenge and Enforcement of Awards
- 11 Consolidation and Mass (or Multiparty) Claims
- 12 Transparency and Amici Curiae
- V National Court Interference: Anti-Arbitration Injunctions
- VI The Course of an Investment Arbitration: Overview of the Procedure
- Preliminary Material
- A Introduction
- B Applicable Procedural Rules
- C Waiting Periods
- D Local Remedies
- E Notice of Claim and Request for Arbitration
- F Dynamics on the Host State Side Upon Receiving a Notice of Claim
- G Third Party Funding
- H ‘Registration’ or Approval by Arbitral Institution
- I Default of a Party
- J Composition of Tribunal
- K Powers of Arbitral Tribunals
- L Seat of Arbitration
- M Language of Arbitration
- N Initial Session of the Tribunal
- O Jurisdictional Phase
- P Merits Phase
- Q Witness Statements and Other Evidence
- R Damages Phase
- S Hearings
- T Posthearing Briefs
- U Award
- V Enforcement and Challenge of Award
- VII Special Procedures: Applications and Motions
- Preliminary Material
- A Introduction
- B Challenge of Arbitrators
- C Early Dismissal of Frivolous Claims
- D Arbitrator-Ordered Interim Relief
- E Amicus Curiae Submissions and Transparency
- F Consolidation, Multiparty and Mass Claims
- VIII Governing Law in Investment Disputes
- IX Consent to Arbitral Jurisdiction
- Preliminary Material
- A Introduction
- B Fundamental Concepts Relating to Consent
- C Methods of State Consent to Arbitration
- X Notion of Investment
- Preliminary Material
- A Introduction
- B Admission, Establishment, and Protection of Pre-Investment Activities
- C Definition of Investment in Investment Treaties
- D Definition of Investment and Its Implications for the Jurisdiction of Arbitral Tribunals Under the ICSID Convention
- E Characteristics of Investment Under Article 25 of the ICSID Convention
- F The Concept of Unity of Investment Under the ICSID Convention
- G Contribution, Duration, and Risk in Non-ICSID Cases: Romak v. Uzbekistan and Its Progeny
- H Survey of Other Non-ICSID Cases on Meaning of Investment
- XI Investors
- Preliminary Material
- 11.01
- 11.02
- A Natural Persons
- B Legal Persons
- C Shareholder Losses, Standing, and Scope of Recovery
- D Change of Nationality and Treaty Shopping
- XII Jurisdiction Ratione Temporis
- Preliminary Material
- 12.01
- 12.02
- 12.03
- 12.04
- 12.05
- A Application to Acts before a Treaty’s Entry into Force
- B Disputes Arising Before a Treaty’s Entry into Force
- C Laches and Extinction
- D Termination and Survival or Sunset Clauses
- XIII Exhaustion of Local Remedies
- Preliminary Material
- A Exhaustion of Local Remedies and the Notion of Futility
- B Pursuit of Local Remedies in Investment Treaty Arbitration
- XIV Election of Forum: Treaty Arbitration, National Courts or Contract Arbitration
- Preliminary Material
- A Overview
- B Treaty Claims, Contract Claims, and Jurisdiction of International Tribunals
- C Fork in the Road and Waiver Provisions: Treaty Texts
- D Contractual Forum Selection Clauses
- XV Umbrella Clauses
- XVI State Responsibility, Attribution, and Circumstances Precluding Wrongfulness
- Preliminary Material
- A Introduction
- B Attribution
- 16.03
- 16.04
- 1 Attribution of Conduct of State Organs to the State (Article 4 of the ILC Articles)
- 2 Attribution of Conduct of Persons or Entities Exercising Elements of Governmental Authority (Article 5 of the ILC Articles)
- 3 Attribution of Conduct Directed or Controlled by a State (Article 8 of the ILC Articles)
- C Circumstances Precluding Wrongfulness Under Customary International Law
- D Non-Precluded Measures Clauses
- XVII Discrimination: National Treatment, Most-Favoured Nation Treatment, and Discriminatory Impairment
- Preliminary Material
- 17.01
- A National Treatment
- B Most Favoured Nation Treatment
- 1 Overview
- 2 Scope and Interpretation of Most Favoured Nation Clauses
- 3 Most Favoured Nation Exceptions and Carve-Outs
- 4 Application of Most Favoured Nation Clauses to Substantive and Procedural Rights
- C Discriminatory Impairment
- XVIII Expropriation
- Preliminary Material
- 18.01
- 18.02
- A Historical Overview of Expropriation
- B Identification of Investments and Property Protected against Expropriation
- C The Role of Investment Treaties
- D Indirect or Regulatory Expropriation
- 1 Overview
- 2 Relevant Factors for Identifying an Indirect Expropriation
- 18.49
- a The Effect of the Government Measures
- b The Intent, Purpose, Nature, or Character of the Governmental Act or Measure
- c Legitimate Reliance on Government Representations
- d Duration of Effect of Act or Measure
- e Domestic Remedies Sought
- f Transfer of Investment Benefit to the Government or to Third Parties
- g Other Factors
- E The US Approach to Indirect or Regulatory Expropriation
- XIX ‘Fair and Equitable Treatment’, ‘Full Protection and Security’, and ‘War Clauses’
- Preliminary Material
- A Introduction
- B Fair and Equitable Treatment
- 19.03
- 1 History
- 2 Interpretative Approaches: Autonomous FET Clauses versus FET Clauses Embodying the Minimum Standard
- 3 FET (and FPS) and its Relation to the Minimum Standard Under Customary International Law
- 4 Application and Content of the ‘Fair and Equitable’ Treatment
- C Full Protection and Security
- D War Clauses and Their Relation to Full Protection and Security
- XX Transfers
- XXI Compensation, Damages, and Restitution
- Preliminary Material
- A Introduction
- B The Treaty Standards of Compensation
- C The Reparation Principle and the Chorzów Factory Standard
- D Effect of Legality and Illegality of State Conduct on Compensation
- E Limitations on Compensation
- F Quantification of Damages
- G Moral Damages
- H Interest
- I Allocation of Arbitration and Legal Costs
- XXII Annulment, Set Aside, and Refusal to Enforce
- Preliminary Material
- 22.01
- 22.02
- A Annulment of ICSID Awards
- 1 Overview
- 2 Stay of Enforcement of ICSID Awards
- 3 Grounds for Annulment
- 22.22
- 22.23
- 22.24
- a Article 52(1)(a): The Tribunal Was Not Properly Constituted
- b Article 52(1)(b): The Tribunal Manifestly Exceeded Its Powers
- c Article 52(1)(c): Arbitrator Corruption
- d Article 52(1)(d): Serious Departure from a Fundamental Rule of Procedure
- e Article 52(1)(e): Failure to State the Reasons on Which the Award Was Based
- B Setting Aside and Blocking Enforcement of Non-ICSID Awards
- 1 Overview
- 2 Stay of Enforcement of Non-ICSID Awards
- 3 Grounds for Setting Aside or Refusing to Enforce Non-ICSID Awards
- a Invalidity of the Agreement to Arbitrate
- b Inability to Present the Case
- c Excess of Authority
- d Irregularity in the Conduct of Proceeding
- e Award Has Been Set Aside at the Seat of Arbitration
- f Non-arbitrability
- g Public Policy
- h ‘Manifest Disregard of the Law’ and Other ‘Substantive’ Grounds
- XXIII Enforcement and Execution
- Further Material
- [34.204.172.188]
- 34.204.172.188
