The United States of America (USA) acceded to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) in 1970 and implemented its provisions by enacting Chapter 2 of the Federal Arbitration Act (FAA). The USA also limited the applicability of the New York Convention by adhering to the optional �commercial� reservation. The scop…

In a second case brought by Apotex against the United States under the North American Free Trade Agreement (NAFTA) in the past three years, the Tribunal, albeit on a majority basis subject to a dissent, upheld the Respondent�s preliminary objections to jurisdiction. The Decision in Apotex Holdings Inc and Apotex Inc v The Government of the United States of America sheds further light on th…

Disaffection regarding treaty-based investor�State dispute settlement (ISDS), especially binding arbitration, is slowly spreading from a few, mostly leftist regimes in South America, to middle-income and developed countries in other parts of the world. In particular, now that the European Union (EU) has exclusive competence to conclude treaties relating to foreign direct investment (FDI), …

The present article presents a study of past awards dealing with the question as to whether a recourse-to-national-courts requirement provided for in some bilateral investment treaties (BITs) may be bypassed by operation of a mostfavoured- nation (MFN) clause contained in the same BIT. We posit that a more careful application of the rules of treaty interpretation contained in Articles 31 and 3…

The Decision on Jurisdiction of the ICSID Tribunal in Siemens AG v Argentine Republic was noteworthy for following the Emilio Agustı�n Maffezini v Kingdom of Spain approach in permitting the claimant to invoke the most-favoured-nation (MFN) provision in order to access an investor�State dispute settlement (ISDS) provision in another bilateral investment treaty (BIT)

The legal seat of the arbitration in investor�State proceedings is often determined by agreement of the parties. If no agreement is reached and the matter is to be decided by a tribunal, what factors have been considered? This Note will examine the jurisprudence available to date on this issue in arbitral proceedings conducted under the auspices of the International Centre for Settlement o…

This article considers the recent flurry of successful challenges to arbitrators in International Centre for the Settlement of Investment Disputes (ICSID) arbitrations and the statistical context and significance of those decisions in light of the notoriously high historical standard for disqualifying ICSID arbitrators. Specifically, it analyses: (i) the reasoning applied in those recent chall…

The investor�State Tribunals in Chevron v Ecuador and White Industries v India clarified that provisions in international investment agreements affording investors access to �effective means� to enforce their rights are not simply positive restatements of the customary international law requirement that investors not be denied justice. Those Tribunals found that delays in domesti…

Denial-of-benefits clauses in investment treaties are generally designed to exclude from treaty protections nationals of third States which, through mailbox or shell companies, seek to benefit from provisions that the State parties to the treaty did not intend to grant them. A review of recent investment cases reveals that tribunals have reached significantly diverging decisions as to when, how…

Much of the existing scholarship on international arbitration tends to emphasize the distinction between contract-based commercial arbitration and treatybased investment arbitration. This article identifies and discusses developments and concepts in the fields of commercial and treaty-based arbitration to argue that the real distinction today is not between commercial and treaty-based arbitral…