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Christoph Schreuer

Abstract

Annulment under the ICSID Convention offers a limited remedy on the basis of a few carefully circumscribed grounds. Recently, losing parties have attacked awards for a wide array of reasons. Some ad hoc committees deciding these requests for annulment have taken a broad view of their powers. They have given some grounds for annulment an extremely wide interpretation thereby blurring the line between annulment and appeal. For instance, a perceived mistake in the interpretation of a rule of law has been regarded as an excess of powers for failure to apply the proper law. One ad hoc committee went beyond the reasons for annulment put forward by the applicant. It actively searched for additional grounds and eventually annulled the award for a reason not relied upon by the applicant. Some ad hoc committees have gone beyond the task given to them by the ICSID Convention, offering general criticism and advice to tribunals. The risk that an ICSID award will be annulled is now higher than that a non-ICSID award will be set aside by a competent domestic court.

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The 15th Geneva Global Arbitration Forum

Preventing a backlash against investment arbitration: could the WTO be the solution?

Christoph Schreuer

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Travelling the BIT Route

Of Waiting Periods, Umbrella Clauses and Forks in the Road

Christoph SCHREUER

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Christoph SCHREUER

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Christoph Schreuer

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Christoph Schreuer

Investment arbitration proceedings are, by definition, unconnected to one another. The lack of coordination yields unfortunate results when proceedings hinge on closely connected (or even identical) claims, factual patterns, challenged measures, parties. To attenuate the risks of double recovery, contradictory findings and abusive tactics, some form of coordination would be in order. The chapter surveys the solutions, both procedural and treaty-based, to manage parallel or successive arbitration claims and to regulate the interplay between related disputes brought before investment tribunals and domestic judges. The resulting scenario is one in which fragmentation is largely bridled, but never completely prevented. Even using these streamlining devices, investment tribunals must inevitably reckon with the existence of competing fora and the inherent possibility that prior or parallel disputes have some bearing on the cases before them. Parties, in turn, must bear these ramifications in mind when they plan a litigation strategy.