Counterclaims in investor-state arbitration

This paper provides a comprehensive analysis of the legal regime governing counterclaims in investor-State disputes. It challenges the frequent presumption that the right to assert counterclaims is hindered by the fact that investment treaties impose no obligations on foreign investors and only protect their rights. The paper demonstrates that the right to assert counterclaims is a procedural right, and subject matter jurisdiction over counterclaims depends on whether the investor has breached obligations found in applicable law. The paper shows that foreign investors’ substantive obligations can be found in sources of international law other than investment treaties. The paper also highlights the difficulties of asserting counterclaims in non-commercial areas such as human rights and environmental protection. Finally, it also shows that tribunals may pierce the corporate veil of foreign investors in the context of counterclaims

The west should not hold its breath in expecting real change to emerge from the 2015 presidential election in Belarus

Belarus will hold a presidential election on 11 October, with the incumbent President, Alexander Lukashenko, looking to remain in power more than 20 years after his first election victory in 1994. Yaraslau Kryvoi argues that with serious obstacles limiting the ability of opposition politicians to campaign against Lukashenko, there is little prospect of the elections producing real change. Nevertheless, with the ties between Russia and Belarus weakened by Russia’s economic downturn, there is an opportunity for the EU to pursue closer cooperation with the country

The law applied by international administrative tribunals: from autonomy to hierarchy

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

Belarus in: nations in transition 2016

July 2015 marked the 25th anniversary of Belarus’s declaration of independence from the Soviet Union. After a brief period of democratic transition in the early 1990s, the country gradually developed into a consolidated authoritarian regime under President Alyaksandr Lukashenka. In October 2015, Lukashenka secured a fifth term in an election that observers from the Organization for Security and Co-operation in Europe (OSCE) did not recognize as free and fair. However, unlike the December 2010 presidential election, the 2015 voting was not followed by violence or imprisonment of major opposition figures. Russia’s illegal annexation of Crimea in 2014 and the subsequent conflict in eastern Ukraine had an important psychological impact on Belarusian authorities. The government is increasingly concerned by Russian actions in Ukraine and is trying to distance itself from its eastern neighbor. Belarus is also suffering from the effects of Russia’s economic downturn. In an attempt to improve relations with the West and offset the influence of an increasingly assertive Russia, the Belarusian administration released all political prisoners in August 2015

Piercing the Corporate Veil in International Arbitration

This article examines the application of the piercing the corporate veil concept in international arbitration. Interpretation of this concept is inconsistent even within one domestic legal system, and it is even less predictable in international arbitration when several legal systems come into play. Piercing the corporate veil may help to give a concrete practical meaning to the purpose of an arbitration agreement or a bilateral investment treaty. However, there are downsides of such piercing because it negates many of the benefits which the corporate form offers. Domestic courts are likely not to recognize and enforce an arbitration award piercing the corporate veil in the absence of a written arbitration agreement. Jurisprudence under the International Centre for Settlement of Investment Disputes (“ICSID”) Convention allows one to avoid the enforcement problem. However, the approaches of ICSID tribunals are inconsistent. This article identifies three major conceptual approaches ICSID tribunals took in the past, namely: (1) declining jurisdiction in the absence of an explicit arbitration agreement, (2) piercing the veil by looking into the issue of foreign control, and (3) piercing the veil on the basis of interpretation of the concept of “investment” in accordance with the intent of parties to the arbitration agreement or purpose of an international treaty. The practical advice offered by this article is to make written arbitration clauses as inclusive as possible, to avoid dealing with piercing the corporate veil altogether

Consent Awards in International Arbitration: From Settlement to Enforcement

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 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

Procedural fairness as a precondition for immunity of international organizations

This article analyses the notion and role of fairness in the procedural rules and practice of international administrative tribunals. After reviewing decisions of international administrative tribunals dealing with the notion of fairness, it shows that tribunals rely on the concept of fairness to limit discretion of decision-makers, to fill gaps in law and to override written law to ensure fairness. The article makes suggestions as to how to reconcile the different visions and roles of fairness in international administrative law. It argues that with the further development of international administrative law, tribunals should as much as possible rely on rules and principles formulated by external bodies rather than on their personal understanding of fairness

From sanctions to summits: Belarus after the Ukraine crisis

Belarus is concerned by Russian actions in Ukraine and is trying to distance itself from Russia, including by not recognising the annexation of Crimea and calling for a peacekeeping mission. It is also suffering the effects of Russia’s economic downturn. President Lukashenka has taken steps to promote the Belarusian language and identity to counter Russian influence. But he is not moving towards greater engagement with the political opposition. The Ukraine crisis has reinforced the risk-averse instincts of the Belarusian people and reduced the likelihood of protests tied to elections scheduled for this year. Minsk is not likely to shift from its broadly proRussian orientation, but it has made tentative diplomatic overtures to the EU. The EU’s pro-democracy sanctions policy toward Belarus has failed to promote political reform and arguably pushed Belarus closer to Russia. Now the EU has to focus not just on fostering democracy but on strengthening Belarusian society, which will help European interests in the long term. The EU should aim to help Belarus with a modernised form of nation building, engaging with civil society, offering assistance on economic reform, lowering the visa barrier, promoting knowledge of the EU and countering Russian propaganda