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Abstract

An investor-State tribunal enjoys significant authority once a dispute is referred to it. Among a tribunal’s unquestioned powers is the power to order interim relief—including with respect to the most sovereign of a State’s conduct: its enforcement of its criminal law. In exercising these powers, an investor-State tribunal goes beyond the role traditionally assigned to it—i.e. to award damages for prejudice caused by a treaty breach—and dictates sovereign conduct. While the applicable treaty, arbitral rules, or law of the seat may not offer specific instructions, arbitral tribunals deciding on such interim relief requests can rely on a significant body of case law. That case law reflects a coherent approach to a thorny question, even though outcomes may vary. This article will deconstruct that coherent approach—from the foundations of the tribunal’s authority to order interim relief in respect to pendant criminal proceedings, to the rights that such relief may protect, to the requirements for ordering such relief, as well the effect of such relief and its duration in addition to any recourse for non-compliance.

In: Brill Research Perspectives in International Investment Law and Arbitration

Abstract

In Investor State Arbitration in a Changing World Order, the authors examine the sustained worldwide challenges to investor state arbitration arising from across the political spectrum. These challenges have led to extensive and thoughtful proposals for reform from the international arbitration community, domestic lawmakers, and international bureaucrats. These reforms play an important role in the continuous evolution of investor state arbitration, and will enhance the quality of justice rendered. However, the authors argue, these reforms are insufficient to resolve the domestic political challenges that investor state arbitration faces. Only political solutions that justify for broad populations the international flow of capital and the independent resolution of disputes arising therefrom can preserve the institution of investor state arbitration. Absent the more equitable distribution of the benefits associated with the international flow of capital, political support for investor state arbitration will remain tenuous, notwithstanding the significant de-escalatory benefits investor state arbitration offers.

In: Brill Research Perspectives in International Investment Law and Arbitration

Abstract

In Addressing Corruption Allegations in International Arbitration, Brody K. Greenwald and Jennifer A. Ivers provide a comprehensive overview of the key issues that arise in international arbitrations involving allegations of corruption drawing upon their significant experience in these high-stakes cases, including in the only two reported investment treaty cases dismissed specifically as a result of corruption. Their monograph is a valuable resource guide that analyzes, among other things, the public policy against corruption, the requirements for establishing corruption, issues relating to the burden and standard of proof, how corruption has been proved in practice, and the legal consequences where corruption is established. Mr. Greenwald and Ms. Ivers also assess issues that arise where a sovereign State raises an arbitration defense based on alleged corruption, but does not prosecute the alleged wrongdoers in its domestic courts.

In: Addressing Corruption Allegations in International Arbitration