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ICSID Members Discuss Amendments to Rules and Regulations

September Arbitration Wrap: News, Knowledge, and Insight

ICSID Members Discuss Amendments to Rules and Regulations

Ucheora Onwuamaegbu

On September 26 and 27, 2018, member states of the International Centre for the Settlement of Investment Disputes (ICSID) met at the seat of the Centre in Washington, DC to discuss the Centre’s proposed Rules amendments, which were published on August 3, 2018. ICSID will continue to receive written comments from the wider public on the proposals until December 28, 2018.

Read the ICSID Announcement

ICSID and CIGI Co-Host Meeting of African Investment Treaty Negotiators

Ucheora Onwuamaegbu

On September 28, 2018, ICSID and the Centre for International Governance Innovation (CIGI) co-hosted an interactive meeting of African Investment Treaty negotiators. Coming on the heels of earlier such events organized by CIGI for Asian and Latin American countries respectively, the purpose of the meeting was to identify topics of interest or concern to African governments regarding the Investor-State dispute settlement system.

The meeting covered such topics as the design of substantive investor protections and Investor-State dispute settlement mechanisms, especially within the African context and against the backdrop of recent and forthcoming negotiations of investment-related treaties, like the African Continental Free Trade Agreement. The meeting’s outcomes are expected to form the basis for further work, including research or training, on the topics that the States consider relevant to their negotiating views and positions.

Arent Fox Welcomes Delegates to ICSID Rules Amendments Meetings and African Investment Treaty Negotiators’ Meeting

Ucheora Onwuamaegbu

On September 27, 2018, Arent Fox hosted a reception at the firm to welcome delegates to the week’s two events at ICSID, namely: the meeting of ICSID’s 150 member countries on the Centre’s proposed amendments to its Rules and Regulations; and the meeting of African Investment Treaty Negotiators co-hosted by ICSID and CIGI.

Panel Rejects Claims of US Investors Against Costa Rica

Timothy J. Feighery

On September 18, 2018, a panel chaired by Eduardo Siqueiros with C. Mark Baker (Claimants) and Professor Pedro Nikken (Respondent) issued its award in David Aven et al. v. Costa Rica (Case No. UNCT/15/3) brought under the CAFTA-DR. In a 255-page award that included jurisdictional and merits decisions, three points warrant notice here.

First, that the panel rejected Claimants’ claim of breach of the treaty’s full protection and security provision, on the grounds that Claimants “failed to expressly plead” such a claim. The panel noted that Claimants “referred to the duty to provide protection and security to the investors only in massing in their Memorial.” (See ¶ 345 of Award).

Second, the panel rejected Claimants assertion that it did not need to exhaust their local remedies on the basis that the CAFTA-DR does not require exhaustion of local remedies. However, the panel determined that the CAFTA-DR displaced the exhaustion rule as a matter of the admissibility of a claim; it did not displace the issue of exhaustion as a potential component of the standard of fair and equitable treatment (¶ 349).

Third, while the panel ordered each side to pay their own costs, it order the Claimants to pay the arbitral costs of $2.18 million for the “reprehensible fact” that Claimants included in its claims 67 other land lots that were “registered in favor of another owner” (¶ 761).

Read a Copy of the Award

Ninth Circuit Rules Emirates Bank Cannot Be Compelled to Arbitrate Claims Against It in California

Jeffrey Makin

On September 7, 2018, the Ninth Circuit Court of Appeals reversed the United States District Court for the Central District of California and ordered that Emirates Bank could not be compelled to arbitrate claims against it in California. The Ninth Circuit concluded that the District Court lacked personal jurisdiction over Emirates Bank. It now appears that the dispute will be arbitrated at the Dubai International Financial Centre.

Read the Ninth Circuit’s Opinions

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