Prof Yarik Kryvoi

    LLM (Harvard), PhD, MCIArb, Attorney (New York Bar)


Short bio

Professor Yarik Kryvoi is an academic and a practitioner based in London specialising on international and comparative law, with a particular focus on dispute resolution and foreign investment law.

Professor Kryvoi has published extensively, practiced and managed large-scale projects on international dispute resolution, international economic law, investment law as well as law and policy in the countries of 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.

Consultancy

  • UAE Prime Minister’s Office (Dubai, United Arab Emirates)

  • Ministry of Justice of Kazakhstan (Astana, Kazakhstan)

  • World Trade Organisation (Geneva, Switzerland)

  • The World Bank (Washington, D.C., USA)

  • Economic Court of the Commonwealth of Independent States (Minsk, Belarus)

  • The Emirate of Dubai (Dubai, United Arab Emirates)

  • International Labour Organization (Geneva, Switzerland)

  • Private clients


Positions of responsibility

  • Chartered Institute of Arbitrators (CIArb), Examiner & Tutor

  • International Courts Committee, ABA Section of International Law, Senior Advisor (former Co-Chair)

  • CIS Arbitration Forum, Founder & Editor

  • ICSID Review - Foreign Investment Law Journal, Journal of International Dispute Settlement, International and Comparative Law Quarterly - occasional referee for article submissions

  • International Law Materials (American Society for International Law), Corresponding Editor

  • European Parliament, Independent Legal Expert (Commercial Law, Comparative Law, International Law)

  • International Encyclopaedia of Laws, Kluwer Law International, Member of International Advisory Board

Employment

  • British Institute of International and Comparative Law, Director of the Investment Treaty Forum (London, UK)

  • University of West London, Professor of Law (London, UK)

  • Freshfields Bruckhaus Deringer, Associate (London, UK)

  • Morgan, Lewis & Bockius, International Consultant (Washington, DC, USA)

  • US Court of Appeals, District of Columbia Circuit, Extern Law Clerk to Judge Stephen F. Williams (Washington, DC, USA)

  • Harvard Law School, Research Assistant to Professor Reinier Kraakman (Cambridge, MA, USA)

  • Belarusian State University, Lecturer (Minsk, Belarus)

  • International Labour Organisation, Legal Intern (Geneva, Switzerland)

  • Baker & McKenzie, Summer Associate (St Petersburg, Russia)





Areas of expertise

Professor Yarik Kryvoi was qualified and has practiced 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 the founder of the CIS Arbitration Forum and serves on editorial boards of several international periodicals.

Professor Kryvoi is listed as an arbitrator and has practiced 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:


Representative publications

  • ‘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.

  • ‘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).

  • ‘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.

  • Law and Practice of International Arbitration in the CIS Region (co-edited with Kaj Hobér) (Wolters Kluwer, 2017). || + Abstract || Buy ||.

    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.

  • The International Centre for Settlement of Investment Disputes (Kluwer Law International, 2016, third edition). || + Abstract || Buy ||.

    Derived from the renowned multi-volume International Encyclopaedia of Laws, this practical analysis of the structure, competence, and management of International Centre for Settlement of Investment Disputes (ICSID) provides substantial and readily accessible information for lawyers, academics, and policymakers likely to have dealings with its activities and data. No other book gives such a clear, uncomplicated description of the organization's role, its rules and how they are applied, its place in the framework of international law, or its relations with other organizations.

    The monograph proceeds logically from the organization's genesis and historical development to the structure of its membership, its various organs and their mandates, its role in intergovernmental cooperation, and its interaction with decisions taken at the national level. Its competence, its financial management, and the nature and applicability of its data and publications are fully described.

    Systematic in presentation, this valuable time-saving resource offers the quickest, easiest way to acquire a sound understanding of the workings of International Centre for Settlement of Investment Disputes (ICSID) for all interested parties. Students and teachers of international law will find it especially valuable as an essential component of the rapidly growing and changing global legal milieu.

  • ‘Procedural Fairness as a Precondition for Immunity of International Organizations’, International Organizations Law Review, Volume 13, pp.255-272 (2016). || + Abstract || Download ||.

    Derived from the renowned multi-volume International Encyclopaedia of Laws, this practical analysis of the structure, competence, and management of International Centre for Settlement of Investment Disputes (ICSID) provides substantial and readily accessible information for lawyers, academics, and policymakers likely to have dealings with its activities and data. No other book gives such a clear, uncomplicated description of the organization's role, its rules and how they are applied, its place in the framework of international law, or its relations with other organizations.

    The monograph proceeds logically from the organization's genesis and historical development to the structure of its membership, its various organs and their mandates, its role in intergovernmental cooperation, and its interaction with decisions taken at the national level. Its competence, its financial management, and the nature and applicability of its data and publications are fully described.

    Systematic in presentation, this valuable time-saving resource offers the quickest, easiest way to acquire a sound understanding of the workings of International Centre for Settlement of Investment Disputes (ICSID) for all interested parties. Students and teachers of international law will find it especially valuable as an essential component of the rapidly growing and changing global legal milieu.

  • ‘Consent Awards in International Arbitration: From Settlement to Enforcement’, Brooklyn Journal of International Law, Volume 40, pp.827-686 (2015). || + Abstract || Download ||.

    Although over a third of all arbitration proceedings result in settlement agreements very little has been written on the legal status of consent awards in international arbitration.

    Drawing on a comparative analysis of procedural rules and practice of major arbitration tribunals, domestic law of common and civil law jurisdictions, this Article presents the first major study of consent awards in international arbitration.

    Consent awards, being effectively settlement agreements recorded by arbitration tribunals as awards, raise a number of difficult legal questions, ranging from the right of arbitrators to refuse recoding the settlement as a consent award to the possible use of consent awards to cover illegal activities.

    Understanding what makes consent awards different from “normal” arbitration awards will help successfully navigate from settlement to enforcement.

  • ‘The Law Applied by International Administrative Tribunals: From Autonomy to Hierarchy’, George Washington International Law Review, Volume 46, pp. 267-301 (2015). || + Abstract || Download ||.

    This Article examines the law applied by the administrative tribunals of international organizations when resolving disputes between international organizations and international civil servants. The analysis suggests that international administrative tribunals primarily rely on employment contracts and internal law of international organisations while only rarely referencing international law.

    This Article argues that international administrative tribunals should specifically define in their relevant statutes the sources of law applicable to international administrative disputes and that they should distinguish such sources from non-legal norms. The Article further notes the modern trend of international administrative tribunals of giving more weight to general principles of law.

    It ultimately argues that these tribunals should establish the supremacy of international law, particularly fundamental principles of international labor law, over the internal law of international organizations. The establishment of such a hierarchy will make international administrative law more legitimate, coherent, and predictable.

  • ‘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). || + Abstract || 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.

  • ‘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). || + Abstract || 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.

To see full bibliography please click here.

Contact


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




Yarik Kryvoi © 2019