The Journal of

WORLD INVESTMENT & TRADE

ABSTRACTS 

Christoph Schreuer: Fair and Equitable Treatment in Arbitral Practice

“Fair and equitable treatment” is the most frequently invoked standard in investment arbitration. Despite its apparent vagueness, tribunals have in the last few years applied it in a considerable number of cases. This case-law makes it possible to identify a number of typical fact situations to which the concept is applicable. With the help of this arbitral practice, a standard is emerging that gives a measure of real and specific protection to foreign investors.

Christoph Schreuer is Professor of International Law at the University of Vienna, Austria. He is also the author of Travelling the Bit Route—Of Waiting Periods, Umbrella Clauses and Forks in the Road, which appeared in the April 2005 issue of The Journal of World Investment & Trade, Vol. 5, No. 2.

Stanimir A. Alexandrov: The “Baby Boom” of Treaty-Based Arbitrations and the Jurisdiction of Icsid Tribunals—Shareholders as "Investors" under Investment Treaties

Recent Icsid decisions on jurisdictional matters are contributing to the crystallization of the law governing investor–State arbitration. Icsid tribunals have confirmed basic and relatively uncontroversial principles that were sketched out in early arbitrations: that a shareholder has standing independent of the corporation whose equity is held; that the shareholder may claim for measures that affect the company and its assets, not just the shares and shareholder rights as such; and that corporate nationality is generally assessed based on the place of incorporation. Tribunals have also elaborated on the logical reach of such basic principles and have explained that shareholder standing is not limited to majority or controlling shareholders. Finally, tribunals have held that an investor may claim for measures that affect its investment without demonstrating that it directly transferred resources into the host State or the origin and source of such resources.

Stanimir A. Alexandrov is a Partner of Sidley Austin Brown & Wood Llp in Washington, D.C. He is also the author of Breaches of Contract and Breaches of Treaty—The Jurisdiction of Treaty-based Arbitration Tribunals to Decide Breach of Contract Claims in Sgs v. Pakistan and Sgs v. Philippines, which appeared in the August 2004 issue of The Journal of World Investment & Trade, Vol. 5, No. 4.

Carlos E. Alfaro and Pedro M. Lorenti: The Growing Opposition of Argentina to Icsid Arbitration Tribunals—A Conflict between International and Domestic Law?

On 12 May 2005, an Icsid Arbitration Panel adjudicated compensation rights for US$ 133.2 million to Cms Gas Transmission Company against the Argentine State. This is the first of many Icsid arbitration proceedings related to the measures adopted by the Argentine government to combat the 2001–2002 economic crisis. The country’s defense strategy is, among others particularly applicable to each case, in theory based on two legal interpretations about the pre-emption of the Icsid Convention by domestic constitutional law. The such interpretation endorses the non-enforceability of the Icsid awards while, pursuant to the second, the Icsid Convention may be held null and void. This article analyzes both theories within the framework of the Constitutional provisions and the public international law rules applicable to Argentine international treaties.

Carlos E. Alfaro is a Partner of Alfaro-Abogados in Buenos Aires, Argentina.

Pedro M. Lorenti is a Special Counsel with Alfaro-Abogados in Buenos Aires, Argentina.

Meir P. Pugatch: The International Regulation of Iprs in a Trips and Trips-plus World

In recent years, researchers have found substantial evidence suggesting that since the year 2000 regional and bilateral trade agreements between developed and developing countries have tended to implement IP provisions that go beyond the Trips Agreement. However, thus far, less attention has been devoted to placing the above developments in a more general context that seeks to analyse—both theoretically and empirically—the regulation of Iprs across international, regional and bilateral levels. That is the purpose of this article. First, it describes the complex economic nature of Iprs. Second, it identifies key elements that are fundamental to IP trade agreements and which are subject to ongoing negotiations (as well as conflicts) at the international, regional and bi-national levels. Finally, the article focuses on some specific IP characteristics of regional and bilateral trade agreements between developed and developing countries. Special attention is given to the difference between the U.S. and EU approaches to the protection of Iprs in regional and bilateral trade agreements and to the level of IP protection deriving from Trips-plus provisions.

Meir P. Pugatch, M.Sc., Ph.D., is at the School of Public Health of the University of Haifa, Israel. 

Bjørn Kunoy: Developments in Indirect Expropriation Case Law in Icsid Transnational Arbitration

This article examines the contours of Icsid tribunals’ interpretation of the notion of indirect expropriation. Icsid transnational arbitration decisions are flowering, and indirect expropriation litigations are a central part of these disputes. A large majority of disputes find their jurisdictional legal basis in bilateral investment treaties which contain different and vague definitions of the notion of indirect expropriation. These treaties do not contain any provisions providing for exceptions to the scope of the protection provided to the foreign investor, regardless of the aim of the national measure. This is compounded by the fact that different interpretations have been given to the notion of indirect expropriation by various Icsid tribunals, with the result that the legal contours of indirect expropriation is distinctive in numerous aspects.

Bjørn Kunoy holds a Master’s Degree in European Legal Studies from the College of Europe in Bruges, Blegium, a Master’s Degree in International Trade and Investment Law from the Université Paris X-Nanterre, and a Degree in Law from the Université Paris V-René Descartes.