Articles in academic journals
- ‘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)
|| + Abstract || Download ||
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.
- ‘Economic Crimes in International Investment Law’, International and Comparative Law Quarterly, Volume 67, Issue 3, pp. 577-605 (2018)
|| + Abstract || Download ||.
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.
‘Procedural Fairness as a Precondition for Immunity of International Organizations’, International Organizations Law Review, Volume 13, pp.255-272 (2016).
‘Consent Awards in International Arbitration: From Settlement to Enforcement’, Brooklyn Journal of International Law, Volume 40, pp.827-686 (2015). || Download ||.
‘The Law Applied by International Administrative Tribunals: From Autonomy to Hierarchy’, George Washington International Law Review, Volume 46, pp.267-301 (2015). || 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).
‘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 ||.
‘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.
- ‘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.
- ‘The Achilles' Heel of Autocracies: The Role of Media in Transition to Democracy’, Williamette Law Review, Volume 46, pp. 75-98 (2009). || Download ||.
- ‘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 ||.
- ‘Why European Union Trade Sanctions Do Not Work’, Minnesota Journal of International Law, Volume 17, pp. 209-246 (2008); Harvard European Law Working Paper No.02/2007 (2007). || 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.
- ‘Enforcing Labor Rights against Multinational Corporate Groups in Europe’, Industrial Relations: A Journal of Economy and Society, Volume 46, pp. 364-384 (2007). || 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).
- ‘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).
Monographs and book chapters
International Arbitration in the CIS Region (co-edited with Kaj Hobér) (Kluwer Law International, 2017).
The International Centre for Settlement of Investment Disputes, 228 pp. (Kluwer Law International 2013, new edition expected in 2016). || Download ||.
‘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).
Labour Law of Belarus, 120 pp. (Kluwer Law International 2011).
‘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 ||.
‘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 ||.
- ‘Belarus’ in SMOKING AND THE WORKPLACE (Roger Blanpain ed.), pp. 69-75 (Kluwer
Law International, 2005).
- ‘Investment Promotion and Protection in the Canada-UK Trade Relationship: Knowledge Synthesis Report’ (2018)
|| + Abstract || Download ||
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 Repoblic of Kazakhstan, 191pp (2018) (not public).
|| + Abstract ||
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 Repoblic of Kazakhstan, 217pp (2018) (not public).
|| + Abstract ||
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 Repoblic of Kazakhstan, 229pp, (2018) (not public).
|| + Abstract ||
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.
- ‘ICSID Arbitration Reform: Mapping Concerns of Users and How to Address Them’, British Institute of International and Comparative Law (2018)
|| + Abstract || Download ||
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).
- ‘Consolidating the International Investment Agreement Network’, UNCTAD Annual High-level IIA Conference 2017, United Nations Commission on Trade and Development (2017) (with Steffen Hindelang)
|| + Abstract || Download ||.
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.
- ‘From Sanctions to Summits: Belarus After the Ukraine Crisis’, Policy Memo (European Council on Foreign Relations, 2015). || + Abstract || Download ||.
Belarus is concerned by Russian actions in Ukraine and is trying to distance itself from Russia, including
by not recognising the annexation of Crimea and calling for a peacekeeping mission. It is also suffering
the effects of Russia’s economic downturn.
- President Lukashenka has taken steps to promote the Belarusian language and identity to counterRussian influence. But he is not moving towards greater engagement with the political opposition.
- The Ukraine crisis has reinforced the risk-averse instincts of the Belarusian people and reduced the
likelihood of protests tied to elections scheduled for this year.
- Minsk is not likely to shift from its broadly proRussian orientation, but it has made tentative diplomatic overtures to the EU.
- The EU’s pro-democracy sanctions policy toward Belarus has failed to promote political reform and
arguably pushed Belarus closer to Russia. Now the U has to focus not just on fostering democracy but
on strengthening Belarusian society, which will help European interests in the long term.
- The EU should aim to help Belarus with a modernised form of nation building, engaging with civil society,
offering assistance on economic reform, lowering the visa barrier, promoting knowledge of the EU and countering Russian propaganda.
Selected shorter articles and reviews
- ‘Contract Law in Russia’ (book review), KING’S LAW JOURNAL, Volume 25, pp.488-491 (2014). || Download ||.
- ‘Belarusian Labour Law – Stuck in Transition’, TRANSITION STUDIES REVIEW, Volume 13, pp. 571-575 (2006).|| Download ||.
- ‘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.
- Termination of Employment Legislation Digest: Belarus, International Labour Organization, Geneva (2007).
- ‘Belarusian Labour Law – Stuck in Transition’, TRANSITION STUDIES REVIEW, Volume 13, pp. 571-575 (2006).|| Download ||.
- ‘Transnational Corporations and Labour’, PRAVOVEDENIE, Volume 5, pp. 121-126
(2000) (in Russian).
- ICSID Arbitration Reform: Mapping Concerns of Users and How to Address Them, 11 November 2018, Kluwer Arbitration Blog || Read ||.
- Bribery, Corruption, and Fraud in Investor-State Disputes: How Should Tribunals Approach Economic Crimes?, 10 August 2018, Kluwer Arbitration Blog || Read ||.
- Arbitration in the CIS Region: from Soviet Roots to Modern Arbitration Laws, 15 November 2017, Kluwer Arbitration Blog || Read ||.
- Interview with ICSID Secretary-General Meg Kinnear: ICSID and the CIS region, 31 May 2017, CIS Arbitration Forum || Read ||.
- More Parties include ICC Arbitration Clauses, the Number of CIS Disputes Rising. Interview with the Secretary General of the ICC International Court of Arbitration and Director of Dispute Resolution Services of the ICC, 22 December 2015, CIS Arbitration Forum || Read ||.
- Enforcement of Settlement Agreements Reached in Arbitration and Mediation, with Dmitry Davydenko, 25 November 2015, Kluwer Arbitration Blog || Read ||.
- 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 ||.
- Piercing the Corporate Veil and Enforcement, 3 May 2010, Kluwer Arbitration Blog || Read ||.
Yarik Kryvoi © 2019