ABSTRACT

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Chronicle for the Period from September 1, 2007 to January 31, 2008 (Part 1)

Author: W. BEN HAMIDA, F. HORCHANI & E. CABROL

Type: Article : News

ref: 32008404-426

N0:3 of 2008

Pages: 404-426

Developments in investment law are abundant and this chronicle on the topic will now be written by a team. Many arbitral decisions and awards have been handed down on merits, on jurisdiction, and on requests for annulment. They address the existence of an investment as defined in the ICSID Convention, whether internationally unlawful actions taken by municipalities may be attributed to the State, breaches of fair and equitable treatment breaches of the protection obligation, most favoured nation treatment, the concept of similar circumstances, and breaches of the ban on expropriation (award in Parkerings-Compagniet AS v. Lithuanis, 11 Sept. 2007). The award in Sempra Energy International v. Argentina on 28 September 2007 examines the issues of whether loans may be characterised as an investment within the meaning of the relevant investment treaties and the ICSID Convention, the law applying to the substance of the case, simultaneous application of domestic and international law pursuant to article 42, "fait du prince" and force majeure, breaches of fair and equitable treatment, the umbrella clause, the protection and safety obligation, and lastly expropriation and the recurrent issue of the state of necessity. In the section on texts we review the law on subsoil use in Kazakhstan, the agreement on the "Louvre Abu Dhabi" between France and the United Arab Emirates, and the new BIT between the United States and Rwanda. The section on useful information notes ICSID's revised arbitration fee schedule, Ecuador's new position on article 25(4) and its termination of BITs and the PCA's (PCA)’s registry caseload record in arbitration between States and investors on the basis of bilateral or multilateral investment treaties. Finally, the section on publications has been expanded and now refers to high quality academic work and theses on investment law in France and abroad.