- Public and Private Governance of Cybersecurity: Challenges and Potential, Cambridge University Press (forthcoming edited book)
Taxation and Arbitration, BIICL & Wilmer Cutler Pickering Hale and Dorr LLP (forthcoming)
Resolution of Technology Disputes, BIICL & Cooley LLP (forthcoming)
Three Dimensions of Inequality in International Investment Law, Comparative Law Yearbook of International Business, Kluwer Law International (forthcoming)
Sovereign Wealth Funds: Transnational Regulation and Dispute Resolution, BIICL and Withers (2021)
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As the presence of SWFs in the global economy grows so does their involvement in international disputes. SWFs as SOEs involved in commercial activities present a particular set of challenges for regulators, adjudicators and legal practitioners. Although corporate structuring of SWFs differs, international courts and tribunals often tend to apply similar sets of public international law principles to determine the issues of their standing in investor-State disputes or attribution of their activities to their home States, as well as the possibility of claims being raised on their behalf by their home State.
Domestic law plays a key role when it comes to questions of admission of SWFs as foreign investors, issues of foreign sovereign immunity, sanctions or issues of responsible investment or of business and human rights. However, increasingly States coordinate their approaches to the regulation of SWFs. As at today, the 2008 Santiago Principles remains the main instrument of self-regulation of SWFs.
The increased significance and cross border activities of SWFs have contributed to the adoption of new forms of regulation including national legislation on investment screening and sanctions at the UN, EU and domestic level — such as the Foreign Investment and National Security Act of 2007 in the US — as well as instruments promoting responsible investment, human rights and the environment. In many areas, the regulation of SWFs is still underdeveloped, a prominent example being IIAs. Most IIAs lack clear provisions on the protection of SWFs. Only a relatively small number of new generation IIAs contain express provisions on SWFs, which differ from one treaty to another.
As their importance and value has grown, so have the number of questions surrounding SWFs in relation to their investment strategy, their independence, and their relationship with methods of dispute resolution. The lack of formal regulation presents one of the foremost challenges. There is a recent surge in scrutiny which has resulted in a body of scholarship starting from 2009 onwards. However, jurisprudence in this field is still at an early stage and many cases remain confidential.
The limited publicly available case law of domestic courts and commercial arbitral tribunals shows that SWFs recur to commercial dispute resolution as any other economic actors. However, some disputes relate to the inherent characteristics of SWFs such as their real or perceived ambivalent private and public nature. That includes the issue of corporate structuring, the relationship between SWFs and their home States and sovereign immunity. Similar questions may arise in the context of the WTO and other forms of public international law dispute resolution, thereby creating a need to have a specialised understanding of the nature and functioning of SWFs.
SWFs may be involved in various capacities in dispute resolution. They may initiate proceedings by themselves or request their home State to initiate proceedings on their behalf. Their actions or inactions may also for a basis for an action against them or against the State to which they belong or have a direct or indirect nexus. Only a few reported cases involve SWFs as claimants against host States. Possibly, SWFs may prefer to rely on diplomacy, further emphasising the dual nature of SWFs and the complexity they bring to the analysis of existing dispute resolution practices.
In the available investor-State cases key issues which the tribunals tackle include corporate structuring and the relationship between SWFs and their home States. The question often arises as to whether a SWF as a state-owned entity can commence arbitration proceedings against a host State. According to the prevailing view, the investment guarantee provisions of IIAs usually cover SWFs unless they contain explicit carve-outs for SWFs or State-owned entities. Investor-State tribunals may focus on whether the activities of SWFs have a commercial or governmental nature. The protections for SWFs in the FDI admission process (such as investment screening) are relatively limited and depend on the language of each specific treaty.
SWFs might play (and have played) a role in investor-State arbitration also on the opposite side, namely as organs or instrumentalities of the host State. In that case, the investor would have to show that the conduct of the SWF in question is "attributable" to the host State according to the rules of international responsibility under international law.
A SWF-related litigation may also arise under one of the WTO Agreements. These proceedings may involve proceedings initiated by a State to protect the interests of its SWF, regarding a measure that may affect their interests, such as under the TRIMs or TRIPs. Additionally, measures taken by a State to prefer its own SWF may form a basis of proceedings by another State. There may be other situations of market access or non-tariff barriers or a challenged based under other WTO agreements. These situations can exist generally for any entity, but they are particularly important due to a present or perceived connection between the State and SWFs.
Whether an SWF can rely on sovereign immunity to resist jurisdiction of courts or tribunals or enforcement attempts depends on the law under which proceedings are brought. It also depends on the extent of the SWFs autonomy from the State in its corporate governance structure and the law of the jurisdiction where such proceedings are commenced. If a SWF benefits from State immunity, this may create a jurisdictional obstacle to bringing claims against the SWF or an obstacle in enforcing a court judgment or arbitral award against it.
The determination of SWF activities as commercial often plays a decisive role in any given case and would usually turn on the 'commercial activity' exception contained in particular domestic laws. However, a uniform practice regarding the application of these doctrines to SWFs has not crystallised yet and differs from one jurisdiction to another.
States hosting SWF investments can view the economic power and influence of SWFs with suspicion, as evidenced by legislation on foreign investment screening and national security laws. New types of disputes involving SWFs and investment screening decisions might arise in the future, and this might prompt SWFs to resort to the available domestic and international dispute settlement tools, including domestic litigation, commercial arbitration or investor-State arbitration.
Private or Public Adjudication? Procedure, Substance and Legitimacy, Leiden Journal of International Law, Volume 34, Issue 3, pp. 681-703 (2021)
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This paper identifies the essential differences between public and private adjudication and their implications for legitimacy of dispute resolution institutions, the rule of law and facilitation of private ordering. Public adjudication comes at a significant cost for the taxpayers but helps secure a consistent body of case law, promotes public policy goals and allows third parties to know the rules of conduct in advance to prevent undesirable activities.
This paper shows that procedural rules of these institutions (regardless of whether the procedure is called adjudication or arbitration) differ when it comes to the appointment of adjudicators, their professional background, and how long they serve. Public and private institutions consistently follow different approaches to transparency and confidentiality of proceedings, the application of primarily substantive rules or principles to resolve disagreements, and the extent to which decisions can be reviewed internally or externally.
By examining the procedural rules and practices of selected institutions, the paper asserts three main claims. First, the choice of public or private adjudication is likely to lead to different procedural outcomes, including the cost of the process and the duration. Second, legitimacy of any dispute resolution system must rest on both procedural and substantive aspects, while in reality these two are often viewed in isolation. Finally, the paper argues that private and public adjudication institutions have much to learn from each other and proposes how institutions could learn from each other to become more efficient and strengthen their legitimacy
Empirical Study: Annulment in ICSID Arbitration, BIICL and Baker Botts (2021)
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This report examines the trends and practices of annulment committees on key issues such as the success rate of annulment applications, the most frequently invoked annulment grounds, the length and costs of annulments proceedings. It also provides an in-depth analysis on how tribunals approach the specific annulment grounds under Article 52(1) of the ICSID Convention.
NEARLY A HALF OF ALL ICSID AWARDS FACE ANNULMENT APPLICATIONS, AND THE PROPORTION IS GROWING
Of the estimated 355 awards rendered under the ICSID Convention to date, 156 have been or are currently the subject of annulment proceedings – over 40% of all ICSID awards. This number has increased dramatically over the last decade. Three quarters of annulment proceedings have been initiated since 2009. This growth has significantly outpaced the growth in the number of substantive ICSID arbitration proceedings.
THE SUCCESS RATE OF ANNULMENT APPLICATIONS REMAINS LOW
Applicants have only succeeded in approximately 12% of annulment requests. To date, only six ICSID awards have been annulled in full. This represents less than 2% of the total awards under the ICSID Convention. With many annulment proceedings still pending, the number of successful applications will likely increase. Annulment (or set-aside) applications in non-ICSID investment arbitration proceedings (i.e., before national courts) have a significantly higher success rate than in ICSID proceedings.
NEARLY HALF OF ANNULMENT APPLICATIONS ARE DISCONTINUED BEFORE REACHING AN AD HOC COMMITTEE
Almost 30% of all annulment cases are discontinued and never decided by ad hoc committees. The apparent reason for this is that many annulment applications are made on a tentative basis, in order to comply with the 120-day application deadline and or to create leverage for settlement negotiations. The discontinuance rate has increased over the past decade.
STATES ARE MORE LIKELY TO SEEK ANNULMENT AND TO PREVAIL THAN INVESTORS
States seek to annul ICSID awards more often than investors and are more likely to prevail. A small number of States account for a significant portion of ICSID annulment applications. Argentina, Venezuela and Spain are the most frequent State applicants and account for nearly 45% of all annulment applications submitted by States.
MOST POPULAR AND SUCCESSFUL ANNULMENT GROUNDS
The three most commonly invoked grounds of annulment are those in Article 52(1)(b), (d) and (e) of the Convention, namely: (i) that the tribunal manifestly exceeded its powers; (ii) that there was a serious departure from a fundamental rule of procedure and (iii) that the award failed to state the reasons on which it is based. They are also the most frequently successfully invoked grounds. In practice, where a partial annulment is ordered (which is more common than full annulment), the tribunal’s damages analyses and jurisdictional findings are more likely to be annulled than findings on liability.
The most frequently and successfully invoked annulment ground is manifest excess of powers. It has been raised in almost 90% of all completed annulment proceedings. Seventeen percent of applications were successful. Of the 11 successful applications, three related to jurisdiction, six related to the applicable law and two related to other powers. Parties have claimed that there was an absence of reasons in most annulment proceedings (80%), with a 15% success rate.
Ad hoc committees have linked the ground of a serious departure from a fundamental rule of procedure with the need to ensure fundamental principles of due process and natural justice are complied with. Parties relied on this ground in over 70% of annulment proceedings but have only been successful in slightly less than 8% of cases.
Requests for annulment on the basis that the tribunal was not properly constituted have been relatively rare. Parties have invoked this annulment ground in 6% of completed proceedings (often in conjunction with an allegation of a serious departure from a fundamental rule of procedure) but only once successfully. The final ground for annulment based on corruption on the part of a member of the tribunal has not yet been successfully invoked.
Costs, Damages and Duration in Investor-State Arbitration, BIICL and Allen & Overy (2021)
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This study examines over 400 investor-State cases conducted under ICSID, UNCITRAL and other arbitration rules, and over 70 ICSID annulment decisions, giving a comprehensive account of how long ISDS proceedings last, how much they cost, how tribunals allocate those costs as well as the amounts of damages awarded.
Key findings of the study include:
- Party costs have decreased over the past three years
- Investor costs remain higher than respondent States' costs in arbitral proceedings
- The prospects of recovering costs have improved
- Investors are claiming and are awarded larger amounts
- There is a steady increase in the length of investor-State proceedings
- The choice of arbitration rules does not significantly impact tribunal costs, costs allocation and duration of investor-State proceedings
Non-retroactivity as a General Principle of Law, Utrecht Law Review, Volume 17, Issue 1, pp.46–58 (2021)
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This Article examines the principle of non-retroactive application of law, which prohibits the application of law to events which took place before the law was introduced. The application of this principle has become particularly controversial as states adopt stricter regulations to tackle climate change with retroactive effect, and investors challenge them before international courts and tribunals.
In the context of criminal law, the principle is widespread and has become a binding norm of international law. However, a survey of domestic jurisdictions and decisions of international courts and tribunals shows that that there is no general principle of international law which forbids the retroactive application of administrative law. Despite pronouncements of some international courts and tribunals to the contrary, states can conclude treaties and adopt administrative regulations with retroactive effect to pursue legitimate public policy objectives.
UK and International Experience in the Admission, Regulation and Operation of Arbitral Institutions (仲裁机构准入、监管和运作之英国及国际经验), Great Britain China Centre (2021)
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States increasingly compete for arbitration users because it helps them to offload the courts, create business opportunities for domestic lawyers and serviced related to law (experts, interpreters, witnesses, conference organizers, hospitality industry). Foreign law firms also actively set up branches of their firms in what they perceive as arbitration hubs. In addition, the popularity of a particular jurisdiction among arbitration users sends a powerful signal to foreign investors about the rule of law and enhances the prestige of the arbitration venue.
This report shows that successful arbitration hubs such as London and Singapore appreciate the economic benefits that international arbitration can bring to them and create favorable conditions for arbitration institutions and users. This report concludes that most jurisdictions do not adopt any special rules for admission of foreign arbitral institutions. Moreover, some jurisdictions (e.g., Singapore) actively adopt various measures to liberalize access of arbitration users and institutions.
London and Singapore are respectively number one and number three most popular seats of arbitration in the world. Arbitration venues in Russia, which takes a more restrictive approach is nowhere near the top of the list of preferences of arbitration users. On the contrary, many arbitration users with Russian and foreign law elements prefer to resolve their disputes abroad. The example of Singapore suggests that active policies to encourage international arbitration can result in impressive results, bringing economic and reputational benefits.
From the regulatory point of view, what matters in most jurisdictions is not whether the arbitration institution is foreign or domestic, but whether the award is foreign (e.g., issues in another jurisdiction). In accordance with the New York Convention foreign (e.g., rendered abroad) arbitral awards are enforced with domestic courts playing a ‘policing’ role. Domestic courts can set aside arbitral rendered in the territory within their jurisdiction or refuse recognition/enforcement for awards rendered in foreign jurisdictions.
Leading international arbitral institutions register offices overseas to better cooperate with local partners and parties for marketing, training and case management. Some arbitral institutions setting up branches in various jurisdictions but usually this does not change the legal status of their awards under their domestic arbitration laws or the New York Convention.
- Three Dimensions of Inequality in International Investment Law , BIICL (2020)
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This paper puts the system of international investment law into its historical context, examines economic data as well as most recent statements of states on inequalities in international investment law. It examines inequalities between foreign investors and states, between developed and developing states as well as between foreign and domestic investors. It shows that each dimension of inequality has its own raison d'etre and proposes ways to tackle them in the context of today’s political and economic realities.
First, this paper asserts that the international investment law’s asymmetric model giving the foreign investor only rights and the host state only obligations no longer reflects the new economic and political realities. The equilibrium between corporate and state actors has significantly shifted and international investment law should be reformed accordingly. The existing model furthers the accumulation of wealth and capital in the Global North and the concentration of corporate power.
Second, the paper shows that in theory, both developing and developed states should be able to equally benefit from international investment agreements. However, in practice, this system disproportionally benefits states in the Global North (capital-exporting states, law firms and arbitrators) while those in in the Global South (primarily developing States) are struggling to find expertise and resources to cope with the influx of investor-state disputes.
Third, the original idea that host states may discriminate against foreign investors is still valid in many cases. However, states are increasingly concerned about the less favourable treatment of their domestic investors, compared to foreign investors, both on procedural and substantive levels.
Finally, the paper recommends several measures to reduce inequalities in international investment law. Reform of the system should tackle the lack of accountability of economically powerful corporations, enduring legacies of colonialism in economic development, as well as give states a greater say on their public policies aimed at protecting human rights, environmental standards, strengthen the rule of law and reduce inequalities.
More specifically, the paper proposes to give greater prominence to the law of host states as applicable law. Further, to widen the inclusion in international investment agreements obligations of the investors related to labour rights, human rights, environmental standards and corruption. It also calls for more effective mechanisms allowing states to assert claims and counterclaims against investors and for measures to reduce the cost and length of investor-state disputes. Finally, it emphasizes the need to strengthen the capacity of states to avoid and better handle investor-state disputes.
- Empirical Study: Corporate Restructuring and Investment Treaty Protections, BIICL/Baker McKenzie (2020)
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BIICL and Baker McKenzie prepared the first comprehensive empirical study on corporate restructuring and investment treaty protections. The study examines all publicly available decisions of investor-state tribunals dealing with issues of corporate structuring and restructuring.
Facilitating the consistency and correctness of decisions remains an important concern for states including with regards to divergent interpretations relating to jurisdiction and admissibility. The UNCITRAL working group that is currently working on reforming the system of investor-state disputes (ISDS) expressed concerns with respect to the cost and duration of such proceedings and in particular the lack of mechanisms to address frivolous or unmeritorious claims, including limitations on the standing of investors.
In the context of investor-state disputes, the term "corporate restructuring" refers to decisions to incorporate companies in certain jurisdictions to benefit from more favourable conditions, most commonly related to tax matters but also to investment treaty protections. This study shows when such restructuring is seen as permissible under international investment agreements and when it leads respondent states to successfully object to the jurisdiction of tribunals.
The study shows that the top five most effective objections of respondent states were based on the interpretation of the relevant treaty provisions and the timing of the restructuring. Other key factors considered by tribunals were the existence of genuine economic activity of the claimant in the host state and the underlying reason for the corporate restructuring.
In the absence of detailed guidance in relevant international treaties, tribunals have significant freedom in deciding on the permissibility of corporate restructuring. However, certain trends have already crystallised and can subsequently be reflected in reformed international investment agreements or practice of investor-state tribunals. Also, these findings may help inform decisions of investors on how to structure their business activities to benefit from international investment agreements.
- Empirical Study: Provisional Measures in Investor-State Arbitration, BIICL/White&Case (2019)
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This first comprehensive empirical study on provisional measures in investment treaty arbitration examines more than a hundred decisions and orders rendered by ICSID, UNCITRAL and other investor-state tribunals. It offers an insight into how international tribunals treat applications for provisional measures.
Over the past 20 years, we have seen a dramatic increase in the number of investor-state disputes and in the number of applications for provisional measures. The study builds on a detailed examination of the entire universe of publicly available decisions and orders on provisional measures (114 in total).
Acknowledging that many such decisions remain unpublished, it aims at providing insights for a better understanding of the evolving jurisprudence based on the published decisions of tribunals. It demonstrates the trends and practices on key issues such as criteria used by tribunals to grant provisional measures and their understanding of such criteria, success rate by applicable arbitration rules and measures requested as well as the cases most frequently relied upon by international tribunals.
The study analyzes the applicable law in decisions on provisional measures, the parties making provisional measures requests, applicable arbitration rules, the types of provisional measures, the requirements for the granting of provisional measures, as well as the effect of provisional measures.
- Glossary of Terms and Concepts of the System of Settlement of Disputes Between States and Investors (Russian Language) (2019)
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This glossary of terms and concepts of the system of settlement of disputes between states and investors was prepared with a view to assisting the UNCITRAL Working Group III (Investor-State Dispute Settlement Reform) process and helping delegations of States and other stakeholders to navigate with more clarity through the technical terms and concepts frequently used in ISDS.
Этот глоссарий терминов и концепций системы урегулирования споров между государствами и инвесторами был подготовлен с целью оказания помощи процессу Рабочей группы III ЮНСИТРАЛ (Реформа урегулирования споров между инвесторами и государствами), делегациям государств и другим заинтересованным сторонам в более четком определении технических терминов и понятий, часто используемых в международных инвестиционных спорах.
Downloadable document is in Russian.
- ‘Economic Crimes in International Investment Law’, International and Comparative Law Quarterly, Volume 67, Issue 3, pp. 577-605 (2018)
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The protection of foreign investment by treaties often clashes with the State's sovereign right to investigate economic crimes committed by investors. This article examines the different approaches taken by tribunals to questions concerning admissibility and jurisdiction, applicable law, the standard of review, the burden and standard of proof and deference to actions taken by domestic courts and regulators related to economic crimes.
It concludes that investors should not automatically be deprived of treaty protections and their access to investment arbitration blocked. The arbitration agreement, being autonomous from the main contract (or the relevant treaty), should, as a rule, remain valid even if the conduct of investors is tainted by economic crimes.
The article calls on investment tribunals to reflect in their awards on the contributory fault of the parties when representatives of States and investors are both complicit in economic crimes. To achieve greater legal certainty and procedural efficiency, a new generation of investment treaties and the practice of investment tribunals should draw on not only applicable domestic law but also existing sources of international law concerning economic crimes or national best practice.
- ‘The Path of Investor-State Disputes: from Compensation Commissions to Arbitral Institutions’, ICSID Review - Foreign Investment Law Journal, Volume 33, Issue 3, pp. 743–765 (2018)
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Protection of aliens under international law has progressed from them being clanless individuals or outlaws completely at mercy of the local lord, with no entitlement to the peace and protection of the locality in the earliest times to the modern sophisticated investor-State dispute settlement mechanisms.
Several fundamental changes have occurred since the constitution of the early compensation commissions of the 18th century leading to the modern system of resolution of investor-State disputes. First, a growing number of multinational enterprises operating globally have become major actors on the international public law plain, in areas in the past reserved only for States. Second, international organisations and other nonstate actors have dramatically strengthened their influence with efficient international arbitration institutions dominating the system of investor-State dispute resolution after the end of the Cold War.
The methods for resolving investor-State disputes have evolved primarily along the lines of creating specialised institutionalised forms. While early commissioners relied on their subjective understanding of justice and fairness, today the expectation is applying agreed set of rules, so that failure to do so may result in annulment of the award.
The evolution of various methods of international dispute settlement and the emergence of new methods, such as international investment courts, does not necessarily mean that the older forms of dispute resolution will die like the dinosaurs. They will continue to function, albeit with modifications and will inform the future models of international dispute settlement.
- Investment Promotion and Protection in the Canada-UK Trade Relationship: Knowledge Synthesis Report (2018)
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A new investment agreement between Canada and the UK constitutes a crucial opportunity to include innovative provisions from recent international agreements and to explore new possibilities to construct a more legitimate regime. In order to support evidence-based decision-making in the negotiation of such an agreement, a comprehensive review of the range of opportunities must be provided. What are the provisions that can be included in an investment agreement between the two states to address controversial issues and support the reform of the international investment regime?
The objectives underlying the final report are to allow policy-makers to undertake the negotiation process with a clear sense of the various provisions that are available to address the most controversial issues of international investment law and their legal implications. The report demonstrates that an investment agreement can respond to legitimacy concerns raised by a variety of stakeholders. More specifically, it provides a side-by-side comparison of provisions that have already been included in IIAs and model agreements for three specific themes: 1) dispute settlement possibilities; 2) the breadth of investment protection; and 3) obligations imposed on foreign investors.
For each theme of the knowledge synthesis, the material that has been collected and analyzed is synthesized through a side-by-side comparison of provisions and their legal implications.
1. Dispute settlement possibilities: The mechanism allowing private investors to submit investment claims to international arbitration has come under increasing public scrutiny, with several actors criticizing its lack of legitimacy. Some policy-makers and negotiators have responded to these criticisms through various means. The report focuses particularly on six approaches that have been included in IIAs and model agreements. These approaches range from a reformed investor-state dispute settlement mechanism through the inclusion of new provisions, a return to diplomatic protection and state-to-state arbitration, reliance on domestic courts, alternative dispute resolution mechanisms, hybrid approaches, and an investment court system.
2. Breadth of investment protection: Addressing concerns raised by stakeholders can also be achieved by further clarifying the content of standards of protection that are traditionally included in IIAs. An enhanced level of precision is especially visible with respect to fair and equitable treatment (FET) and expropriation. Various options have been used by states to qualify FET provisions and to list the elements included in this standard of protection. Other provisions include a limiting definition of indirect expropriation or various forms of carve-outs, including for general regulatory measures.
3. Obligations imposed on foreign investors: With a view to countering the generally asymmetric nature of IIAs, some states have chosen to address foreign investors’ responsibilities in various ways. Some examples refer to these responsibilities in the preamble of an IIA or in provisions referring to the concept of corporate social responsibility. More constraining provisions impose direct obligations on foreign investors, call for an explicit consideration of the investment’s negative impact or deny substantive protection for investment made through corruption or other fraudulent means.
- Comparative Analysis of the National Legislation And International Good Practices in the Area of Activities of the Justice Authorities and Recommendations for the Republic of Kazakhstan, World Bank funded project report for the Ministry of Justice of the Republic of Kazakhstan, 191pp (2018) (not public).
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This report analyses policies, legislation and procedures of justice authorities of Kazakhstan, five OECD countries with good practices in the justice sector and high level of trust in the government (France, Germany, Singapore, the United Kingdom and the United States) as well as three jurisdictions, which have recently made significant progress in reforming their justice authorities (Estonia, Georgia, and Poland).
The analysis covers a wide spectrum of issues, including the genesis of justice authorities and their functions, the main principles of their operation, the interaction between the executive branch, the judiciary and prosecution, organisational and operational capabilities of justice authorities. This
comparative analysis not only shows the best practices from various jurisdictions but also analyses the strengths and weaknesses of each system and potential problems with implementation of various models.
The report demonstrates that justice institutions in all jurisdictions face multiple challenges. The challenges faced range from striking the right balance between safeguarding national security with privacy and civil liberties protections, the need to tackle cyber-attacks and high-technology crimes, to managing an overcrowded prison systems as well as promoting trust and strengthen relationship between law enforcement and local communities. The report shows that many jurisdictions look for better ways to facilitate relations between the justice authorities on the one hand, and the executive and the legislative powers, on the other hand.
- Comparative Analysis of the National Legislation and Law Enforcement Practices of the Republic of Kazakhstan in Relation to Rulemaking/Legislative Drafting and International Good Practices that Regulate Rulemaking, World Bank funded project report for the Ministry of Justice of the Republic of Kazakhstan, 217pp (2018) (not public).
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Rule-making is the main method governments use to achieve their policy objectives, be these policies related to health care, education, security or supporting rulemaking and the efficiency of procedures greatly affect whether the policy aims are achieved.
Properly implemented high-quality regulations promote economic growth, remove unnecessary burdens, reduce inequality and help improve overall governance.
Democracy and the rule of law depends upon sound regulatory frameworks. The empirical evidence suggests regulatory reform stimulates private sector development and economic growth, particularly when the quality of the existing regulatory environment is low. The quality of rulemaking is regarded
as an essential element of competitiveness for any country and its attractiveness to foreign investors.
Governments and international organisations have developed a range of efficient approaches employed at all stages of the rulemaking process, including identifying the problem which requires regulating, preparing drafts and scrutinising them, engaging various stakeholders, adopting the rules
or non-regulatory alternatives and monitoring their impact.
This report identifies the best practices on rulemaking in five the Organisation for Economic Cooperation and Development and other international organisations countries (France, Germany, Singapore, United Kingdom and United States) as well as three jurisdictions which have recently
made significant progress in reforming their rulemaking practices (Estonia, Georgia, and Poland). The report also describes in detail the best national practices as well as challenges which various jurisdictions are facing in implementing reforms in rulemaking.
This comparative analysis suggests that consulting stakeholders, particularly those which do not normally have a loud voice, remain essential for producing high quality regulations. In many jurisdictions, the focus is shifting towards a citizens-centric approach where the interests of citizens
should take precedent over those of regulators. A coherent approach to rulemaking requires drafting clear and efficient regulations, adopting the
regulatory impact assessment (RIA), ex ante and ex post evaluation of rules, as well as transparency and oversight.
- Comparative analysis of the National Legislation and International Good Practices for Further Development of the Entrepreneurship Code’s Provisions, in Particular Introduction into the Legislation of the Republic of Kazakhstan of Good Practices, World Bank funded project report for the Ministry of Justice of the Republic of Kazakhstan, 229pp (2018) (not public).
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As businesses in the Republic of Kazakhstan increasingly engage with the world economy and compete to attract foreign investors, adjusting the regulation of the private sector to align with global best practices has become an important task.
To facilitate this task, this World Bank supported project draws on practices of leading jurisdictions in the world to reform the provisions of the Entrepreneurship Code, which entered into force in 2016.
An important element of the proposed reform is to effectively combine elements of Anglo-Saxon and Romano-Germanic systems to reflect the growing complexity of corporate and contractual relationships, growth in foreign trade transactions and new initiatives such as the establishment of the Astana International Financial Centre (“AIFC”).
The report looks at three areas of law: corporate law, contract law and law dealing with the protection of foreign investments, which are divided into more focused chapters. Each chapter includes an explanatory note, substantive sections, recent reform initiatives as well as policy options and best
practices for consideration.
The national chapters include Kazakhstan, Canada, Germany, Russia, Singapore, the United Kingdom as well as a special section on public international law. This choice of countries reflects the need to take into account approaches taken in common law jurisdictions, civil law jurisdictions as well as mixed
jurisdictions. Most of the jurisdictions have long established traditions of having favourable business climates and proven records of attracting foreign direct investment. The legal system of the Russian Federation is the closest to that of the Republic of Kazakhstan and their recent experience of integrating
common law concepts is particularly useful. This executive summary gives a short overview of some recommendations made in the report prepared
collaboratively by Kazakhstani lawyers and their colleagues from five countries.
- Bribery, Corruption, and Fraud in Investor-State Disputes: How Should Tribunals Approach Economic Crimes?, 10 August 2018, Kluwer Arbitration Blog || Read ||.
- ICSID Arbitration Reform: Mapping Concerns of Users and How to Address Them, British Institute of International and Comparative Law (2018)
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This paper summarises key practical concerns of some members of the Investment Treaty Forum related to ICSID arbitration, as well as a wider community of experts, how the ICSID reform proposals address these concerns and makes suggestions for further improvement.
The paper looks at key concerns of ICSID arbitration users such as timely appointment of arbitrators and challenges to it, over-committed arbitrators and their conflicts of interest, access to emergency arbitrators and fast-track arbitration procedure, procedure for summary rejection of claims and amicable settlement of disputes, consolidation of proceedings, allocation of costs and security for costs, timely rendering of awards and consistency of ICSID annulment decisions.
The paper also includes a comparison between the ICSID Arbitration Rules and other major arbitration rules designed for investment arbitration proceedings: the UNCITRAL Arbitration Rules, the Arbitration Institute of the Stockholm Chamber of Commerce Arbitration Rules (SCC Rules), and the 2017 EU-Canada Comprehensive Economic and Trade Agreement (CETA).
Law and Practice of International Arbitration in the CIS Region (book co-edited with Kaj Hobér) (Kluwer Law International, 2017).
Law and Practice of International Arbitration in the CIS Region offers the first comprehensive overview of commercial arbitration in the Commonwealth of Independent States (CIS) region. After the collapse of the Soviet Union over a dozen new states emerged with their individual systems of international commercial arbitration.
Today, the former Soviet republics such as Russia, Ukraine, Kazakhstan, and others generate a significant and growing amount of work for the major Western and CIS regional, international arbitral institutions.
This book, a country-by-country analysis of regulation and practice of international arbitration in ten CIS jurisdictions, examines notable developments in the use of arbitration mechanisms contained in bilateral and multilateral investment treaties affecting the region.
In addition to a detailed discussion of the particular features of arbitral practice in each jurisdiction, contributions cover the following issues and topics: arbitrability and arbitral procedure; adherence to the ICSID, New York, and key regional conventions relevant to arbitration, often not widely known in the West;
recognition and enforcement of commercial and investor-state arbitration awards; implementation of the UNCITRAL Model Law and other instruments affecting arbitral practice and procedure; statistics from key arbitration institutions; relevant regulations, cases, as well as applicable bilateral investment treaties;law and practice related to investor-state arbitration; and of the Court of the Eurasian Economic Union. An informative introductory chapter discusses the historical and current trends affecting arbitration practice among the CIS countries, including the role of regional conventions relatively unknown in the West.
- Consolidating the International Investment Agreement Network, UNCTAD Annual High-level IIA Conference 2017, United Nations Commission on Trade and Development (2017) (with Steffen Hindelang)
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This report summarises presentations and discussions of State representatives, intergovernmental organisations, academics and other stakeholders in Break-out Session 3 on Consolidating the International Investment Agreements (IIA) Network at UNCTAD’s Annual High-level IIA Conference - Phase 2 of IIA Reform.
Along the lines sketched in the UNCTAD World Investment Report 2017, the participants discussed four main approaches available to States to consolidate international investment agreements:
- issuing joint interpretative statements by parties to IIAs (an issue also discussed in BoS 2);
- replacing old bilateral investment treaties with modern bilateral treaties one by one;
- replacing several investment treaties with one modern regional agreement (consolidation);
- managing relationships between coexisting treaties by transition clauses.
States reported using all these approaches, often in combination, to manage their treaty portfolio. While replacing one treaty by another may resolve problems in individual cases, consolidation and de-fragmentation of the international network require a more systematic approach.
- Improving Arbitration Climate in Japan: Report and Recommendations (2017). || + Abstract || Download ||.
Japan is the third largest economy in the world, strongly oriented on high levels of foreign investment and with large enterprises engaged in international commercial transactions. Yet despite a strong rule of law and a favourable legislative framework based on the UNCITRAL Model Law on International Commercial Arbitration it has one of the least utilised arbitration systems in Asia.
This report and recommendations resulted from a project supported by Daiwa Anglo Japanese Foundation, which brought together arbitration experts from Japan and the United Kingdom to analyse and make recommendations on how to make Japan a more attractive destination for arbitration.
The project included a seminar at the Institute of Advanced Legal Studies in London in May 2016 and a conference at Nagoya University in June 2016. This report analyses key issues related to development of international arbitration in Japan and propose recommendations on the basis of analysis and discussion at these two events.
‘Procedural Fairness as a Precondition for Immunity of International Organizations’, International Organizations Law Review, Volume 13, pp.255-272 (2016).
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>This article analyses the notion and role of fairness in the procedural rules and practice of international administrative tribunals. After reviewing decisions of international administrative tribunals dealing with the notion of fairness, it shows that tribunals rely on the concept of fairness to limit discretion of decision-makers, to fill gaps in law and to override written law to ensure fairness. The article makes suggestions as to how to reconcile the different visions and roles of fairness in international administrative law. It argues that with the further development of international administrative law, tribunals should as much as possible rely on rules and principles formulated by external bodies rather than on their personal understanding of fairness.
‘The Law Applied by International Administrative Tribunals: From Autonomy to Hierarchy’, George Washington International Law Review, Volume 46, pp.267-301 (2015). || Download ||.
- Clash of giants — the Yukos arbitration decision, 12 August 2014, LexisNexis || Read ||.
- Protecting Foreign Investors in Crimea: Is Investment Arbitration an Option? 29 July 2014, LexisNexis || Read ||.
- Russia’s Mistral Deal under International Sanctions – will the Dispute be Arbitrable? 3 October 2014, LexisPSL Arbitration || Download ||.
- ‘Contract Law in Russia’ (book review), KING’S LAW JOURNAL, Volume 25, pp.488-491 (2014).
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The number of disputes involving Russian parties, and Russian law, has been steadily increasing in domestic courts and arbitration tribunals outside Russia. Most of these disputes involve issues of Russian corporate law. A book on Russian contract law in English was long overdue, and Contract Law in Russia authored by Maria Yefremova, Svetlana Yakovleva and Jane Henderson has filled this gap. Two Russian practitioners and a British academic give a comprehensive overview of Russian contract law. The book also marks a new trend of Russian authors writing about Russian law in English. In the past, most books in English were actually written by non-native Russian speakers with limited practical experience of Russian law.
The book follows a rather unusual approach. Not only does it explain various rules of Russian contract law, it also provides examples from the practice of Russian courts. It also offers comparative insights, by showing how certain concepts in Russian law differ from English law. Unlike traditional textbooks on Russian law, this book includes summaries of cases decided primarily by Russian commercial courts relevant to Russian contract law. This enables the reader to learn about statutory norms and to understand how Russian courts apply them in practice.
‘Corporate Disputes in Arbitration Tribunals: To Be or Not To Be’, Zakon, Issue 4, pp.108-118 (co-authored with Sergey Strembelev, in Russian) (2013). || + Abstract || Download ||.
- ‘International Courts’ in The Year in Review, An Annual Publication of the ABA/Section of International Law, pp. 129-147 (co-authored with Emerson Beishline et al, 2013).
‘Bribery and Russia-Related Arbitration’, in ARBITRATION IN CIS COUNTRIES: CURRENT ISSUES, pp. 113-126 (Association for International Arbitration 2012). || Download ||.
‘Flexibility and Security in World Bank’s Doing Business Reports’, in LABOUR REGULATION IN THE 21ST CENTURY: IN SEARCH OF FLEXIBILITY AND SECURITY (Tomas Davulis & Daiva Petrylaitė eds), pp. 49-62 (Cambridge Scholars Publishing 2012).
‘Counterclaims in Investor-State Disputes’, Minnesota Journal of International Law, Volume 21, pp. 216-252 (2012), London School of Economics Legal Studies Working Paper No. 8/2011 (2011). || Download ||.
Although nearly all arbitration rules provide for the right to assert counterclaims in investor-state disputes, many tribunals are reluctant to allow such counterclaims. The two key issues, which tribunals and this Article examine, are investor consent to counterclaims and determination of investor obligations towards the host State.
This Article examined jurisprudence of the Iran-U.S. Claims Tribunal, International Center for Settlement of Investment Disputes tribunals, and UNCITRAL tribunals. The examination suggests that if the relevant treaty contains an offer of jurisdiction only in relation to disputes arising out of State obligations, tribunals are reluctant to extend their jurisdiction over counterclaims. However, if the relevant dispute resolution provision is broad or the parties subsequently alter the jurisdictional offer either explicitly or implicitly tribunals are more likely to allow counterclaims.
The Article shows that in the absence of investor obligations provisions in international treaties, general principles of law appear to be an appropriate source of international law to determine such obligations. The State may also assert counterclaims if the investor breached its obligations under the investment contract concluded with the State. The State, however, cannot assert counterclaims in investor-state arbitration based on purely domestic law obligations of investors.
Labour Law of Belarus, 120 pp. (Kluwer Law International 2011).
- ‘Piercing the Corporate Veil in International Arbitration’, Global Business Law Review, Volume 1, pp.169-186 (2011). || Download ||.
This article examines the application of the piercing the corporate veil concept in international arbitration. Interpretation of this concept is inconsistent even within one domestic legal system, and it is even less predictable in international arbitration when several legal systems come into play.
Domestic courts are likely not to recognize and enforce an arbitration award piercing the corporate veil in the absence of a written arbitration agreement. Piercing the corporate veil may help to give a concrete practical meaning to the purpose of an arbitration agreement or a bilateral investment treaty. However, there are downsides of such piercing because it negates many of the benefits, which the corporate form offers.
Jurisprudence under the International Centre for Settlement of Investment Disputes (“ICSID”) Convention allows one to avoid the enforcement problem. However, the approaches of ICSID tribunals are inconsistent. This article identifies several major conceptual approaches ICSID tribunals took in the past towards piercing the corporate veil. Some tribunals declined jurisdiction in the absence of an explicit arbitration agreement. Other tribunals pierced the corporate veil by looking into the issue of foreign control. ICSID tribunals also pierced the veil on the basis of interpretation of the concept of “investment” in accordance with the intent of parties to the arbitration agreement or purpose of an international treaty.
The practical advice offered by this article is to make written arbitration clauses as inclusive as possible, to avoid dealing with piercing the corporate veil altogether.
- ‘Zabluzhdenia o mezhdunarodnom kommercheskom arbitrazhe’ (Misconceptions about International Arbitration) (co-authored in Russian with Noah Rubins), CORPORATE LAWYER, Issue 56, pp.56-58 (2011) (in Russian). || Download ||.
- ‘Introductory Note to European Court of Human Rights: Kin-Stib & Majkic v.
Serbia (Can an Arbitration Award be Expropriated?)’, INTERNATIONAL LEGAL MATERIALS, Volume 49, pp.1181-1184, 2010. || + Abstract || Download ||.
TThe European Court of Human Rights recently ruled that failure to enforce an arbitration award amounts to violation of the right to peaceful enjoyment of possession. This note first summarizes the ruling in Kin-Stib and Majkic v. Serbia and then considers its implications. In particular, it discusses whether an arbitration award can be expropriated by a State by virtue of non-enforcement in domestic courts.
TThis note concludes that under Kin-Stib and Majkic v. Serbia domestic arbitration awards, or to be more precise the contractual rights crystallized in such awards, are generally capable of being expropriated if the award is final and enforceable as such.
TApplying the logic of the case to awards rendered under the ICSID Convention is more nuanced because non-enforcement in one jurisdiction does not fully deprive the award of its value. It is possible to enforce ICSID awards in other jurisdictions and therefore a case-by-case analysis is necessary to determine whether the award can be expropriated.
TOn the other hand, it appears that the logic of Kin-Stib cannot be applicable to awards rendered under the New York Convention because such awards are unenforceable without formal judicial recognition.
- Piercing the Corporate Veil and Enforcement, 3 May 2010, Kluwer Arbitration Blog || Read ||.
- ‘The Achilles' Heel of Autocracies: The Role of Media in Transition to Democracy’, Williamette Law Review, Volume 46, pp. 75-98 (2009). || Download ||.
‘The World Bank and the ILO: Two Visions of Employment Regulation’, in REGULATION OF FIXED-TERM EMPLOYMENT CONTRACTS: A COMPARATIVE OVERVIEW (Roger Blanpain & Claire Grant eds.), pp. 47-59 (Wolters Kluwer 2009). || Download ||.
This Article analyzes the role of legal, political and economic factors in determining the effectiveness of trade sanctions imposed in response to violation of labor standards. It begins by addressing the theoretical aspects of the linkage between trade and labor and then turns to the practical aspects by examining the application of the recently revised European Union's Generalized System of Preferences (GSP).
The Article suggests that the reasons why countries fail to respect core labor standards are of critical importance in determining the potential effectiveness of sanctions. If the reason is principally economic the mere threat of sanctions may be enough to motivate a country to modify its policies to prevent economic damages resulting from sanctions. Sanctions are less effective in changing the conduct of countries which violate core labor standards primarily due to political reasons.
The European Union's decisions to terminate trade preferences for labor rights violations for Myanmar in 1997 and Belarus in 2006 did not have any significant impact on these countries and are unlikely to achieve their desired objectives in the future for two main reasons. First, the main motivation for these countries' violations is political and the cost of the undemocratic regimes' compliance with international obligations is greater than the cost of non-compliance. Second, both countries have powerful sponsors, which undermine the economic impact of the European Union's sanctions.
Despite the limited effectiveness against the target countries, the withdrawal of trade preferences may have other important effects, such as deterring other potential violators, demonstrating the European Union's commitment to promote core labor standards and strengthening the link between trade and fair labor practices.
- ‘Employee Ownership and Corporate Governance in Post-Privatization Russia’, UC Davis Business Law Journal, Volume 8, pp. 298-322 (2008); reprinted in Corporate Governance in Transition Economies, pp. 221-249 (McGee ed. 2008). || Download ||.
- Termination of Employment Legislation Digest: Belarus, International Labour Organization, Geneva (2007).
- ‘Enforcing Labor Rights against Multinational Corporate Groups in Europe’, Industrial Relations: A Journal of Economy and Society, Volume 46, pp. 364-384 (2007). || Download ||.
‘Do International Labour Standards Matter? Some Peculiarities of Social Partnership in Belarus’ in LABOUR AND SOCIAL SECURITY LAW IN XXI CENTURY: CHALLENGES AND PERSPECTIVES, pp. 535-547 (Cambridge Scholars Publishing 2007).
‘The EU Generalized System of Preferences and Labor Standards: the Role of Law, Economics and Politics’, Published Thesis (LLM), Harvard Law School, Cambridge, MA 2007.
- ‘Legal Regulation of Temporary Agency Work’, 135 pp. (Kovaliova Publisher
2007) (in Russian). || Download ||.
- ‘Belarusian Labour Law – Stuck in Transition’, TRANSITION STUDIES REVIEW, Volume 13, pp. 571-575 (2006).|| Download ||.
- ‘Discrimination and Security of Employment in a Post-Soviet Context’, The International Journal of Comparative Law and Industrial Relations, Volume 22, No.1, pp. 5-17 (2006). || Download ||.
- ‘Smarriti nella transizione: i lavoratori meno giovani nelle economie europee di transizione’, Diritto delle Relazioni Industriali, Volume 15, No.4, pp. 1019-1026 (2005) (in Italian).
- ‘Belarus’ in SMOKING AND THE WORKPLACE (Roger Blanpain ed.), pp. 69-75 (Kluwer
Law International, 2005).
- ‘The Relationship between the State and Trade Unions on the Labour Market: the Belarusian Case’, Bulletin of Comparative Labour Relations, Volume 48, pp.223-231 (2003).
- ‘Transnational Corporations and Labour’, PRAVOVEDENIE, Volume 5, pp. 121-126
(2000) (in Russian).
Yarik Kryvoi ©-