Professor Yarik Kryvoi is a lawyer based in London specialising on international and comparative law. He has studied and practiced law in civil and common law jurisdictions and combines the experience working for large law firms, as an academic and a law reform advisor.
Professor Kryvoi has published extensively, practised and managed large-scale projects on international dispute resolution, international economic law, investment law as well as law and policy in the United Kingdom, United States, the former Soviet Union, the Middle East and Asia.
He is also a respected advisor to governments internationally on legal reforms and public sector excellence. His areas of expertise include promoting the rule of law, commercial and investor-State dispute resolution, courts and other judicial authorities, economic crimes, and the regulation of foreign direct investments.
Career highlights
British Institute of International and Comparative Law, Director of the Investment Treaty Forum (London, UK)
Professor Yarik Kryvoi was qualified and has practised law in common law and civil law jurisdictions as well as on the international level. He has taught at universities in Europe, America and Asia and has widely published issues of international dispute resolution. He is a co-founder of the Arbitraton Lab and serves on editorial boards of several international periodicals. He combines his experience working for large law firms, as an academic and a law reform advisor.
Professor Kryvoi is listed as an arbitrator and has practised international law and arbitration with Morgan, Lewis & Bockius in Washington, D.C. and Freshfields Bruckhaus Deringer in London advising governments, private investors and international organisations. His experience also includes working for intergovernmental organisations, an international court and a US federal court of appeals.
He was engaged practical, scholarly or policy-making projects in a number of jurisdictions, including the United Kingdom, the United States, Russia, Belarus, Kazakhstan, Uzbekistan, Japan, Sri Lanka and the United Arab Emirates.
Prof Kryvoi regularly advises governments on the issues of the rule of law, investment climate, judiciary reform and regulation of the legal profession.
His main areas of expertise include the following:
An overview of the most recent cases and developments related to ISDS, the UNCITRAL Working Group III, the ICSID Rules and Regulations Amendment process and other hot ISDS topics.
This course covers the history and the rationale of protection of foreign direct investments, applicable law, the key standards of international investment law and investor-state dispute settlement.
Selected ongoing projects
Foreign Direct Investments and Corruption for the United Nations Office on Drugs and Crime
Investment Protection: Treaty Structuring and Scope of Investment with Baker McKenzie
Taxation and Arbitration with Wilmer Cutler Pickering Hale and Dorr
Resolution of Technology Disputes with Cooley
Investment Arbitration of Banking and Finance Sector Disputes with Dechert
Public and Private Governance of Cybersecurity: Challenges and Potential with the University of Nagoya, Japan
Putting Legal Education into a Practical Context: The Potential of Online Learning at the UCL Knowledge Lab, UCL Institute of Education
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.
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
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.
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
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.
British Institute of International and Comparative Law
Charles Clore House, 17 Russell Square
London WC1B 5JP
Telephone: +44 (0)20 7862 5156
Email: y.kryvoi@biicl.org
