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Fwd: Do States really need Investment Law ?

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  • Ricardo Urdaneta
    Adjunto un interesante correo de la lista de OGEMID (enseguida) con estadísticas de la UNCTAD sobre el uso de arbitramento de inversión. Contiene un vínculo
    Message 1 of 1 , Apr 18, 2012
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      Adjunto un interesante correo de la lista de OGEMID (enseguida) con estadísticas de la UNCTAD sobre el uso de arbitramento de inversión. Contiene un vínculo a las estadísticas completas.

      Cordialmente,

      Ricardo Urdaneta
      Urdaneta Holguín Abogados
      Calle 67 # 4A-71
      Bogotá, Colombia

      Tel.: (57-1) 249 5080
      Fax: (57-1) 249 6363
      www.uhalaw.com

      The information contained in this e-mail and/or any of its attachments constitutes privileged and confidential attorney-client information.

      Begin forwarded message:

      From: Sergey Ripinsky <Sergey.Ripinsky@...>
      Subject: Re: Do States really need Investment Law ?
      Date: April 18, 2012 6:08:41 AM GMT-05:00
      Reply-To: Sergey Ripinsky <Sergey.Ripinsky@...>

      On the question of dogs, at least in the context of investment arbitration, the newly-published UNCTAD note provides the following statistics:

      2011 arbitral developments brought the overall number of concluded cases to 220. Out of these, approximately 40% were decided in favour of the State and approximately 30% in favour of the investor. Approximately 30% of the cases were settled.

      Decided “in favour of the investor” means that it won on at least one substantive claim and was awarded some compensation. Regarding the settled cases, not sure whether they can be claimed as a victory by one of the parties or are always a “draw” – this may depend on the terms of each specific settlement agreement.

      The UNCTAD Note contains other interesting statistics as well as an overview of key findings of arbitral awards issued in 2011. The full text is available here:
      http://www.unctad.org/en/PublicationsLibrary/webdiaeia2012d10_en.pdf


      Kind regards,

      Sergey Ripinsky
      UNCTAD
      International Investment Agreements Section
      Tel. +41 22 917 1130
      www.unctad.org/iia




      From:        "Dr. Richard Happ" <richard.happ@...>
      To:        OGEMID@...
      Date:        17.04.2012 18:10
      Subject:        Re: Do States really need Investment Law ?
      Sent by:        Oil-Gas-Energy-Mining-Infrastructure Dispute Management <OGEMID@...>




      Dear Sophie,

      your question "When, and how, did the State become the underdog?" needs to be amended: is the State really the underdog?


      I would say no. It is conceptually and in practice not the State which is the underdog, but the investor. As you correctly point out, States are sovereign, and except for very specific situations (large multinational and very small developing state) there is always an inherent inequality. Investment treaties and in particular investment arbitration establishes a level playing field. A State which discriminates, breaks promises or contracts or expropriates without compensation can be held liable. Whether a state has done that is a question for each specific tribunal. There is nothing wrong with that, and the existence of BITs should not be considered a burden (and why should it?) .


      Even if there are a few runaway-tribunals, their awards and decisions cannot be a valid argument against investment arbitration tribunals. Arbitrators are humans, and we are not perfect. ICSID and BITs were created for specific reason and I have not seen any argument that those reasons no longer apply.



      Best regards,


      Richard

      Mit freundlichen Grüßen

      Dr. Richard Happ

      ________________________________________

      Dr. Richard Happ

      Rechtsanwalt
      Partner
      Co-Head Practice Group Arbitration



      Luther Rechtsanwaltsgesellschaft mbH

      Gänsemarkt 45, 20354 Hamburg, Germany
      Phone: +49 40 18067 12766
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      richard.happ@...
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      From:        
      Sophie Nappert <snappert@...>
      To:        
      OGEMID@...
      Date:        
      17.04.2012 08:11
      Subject:        
      Re: Do States really need Investment Law ?
      Sent by:        
      Oil-Gas-Energy-Mining-Infrastructure Dispute Management <OGEMID@...>





      Sébastien, and colleagues

      Perhaps at a more conceptual level, the question might validly be asked why the need is now felt to 'protect' the State - a sovereign entity historically at the centre of international law - from investment law - a creature of investor-to-State arbitration, spun out from treaties conceived to protect the investor, historically a non-entity in international law?

      When, and how, did the State become the underdog?

      Sophie



      ----- Original Message -----
      From: Oil-Gas-Energy-Mining-Infrastructure Dispute Management <OGEMID@...>
      To: OGEMID@... <OGEMID@...>
      Sent: Tue Apr 17 00:51:49 2012
      Subject: Re: Do States really need Investment Law ?

      Dear Hernando,

      I don't know whether Brazilian companies are lobbying their Government  
      to ratify some BITs, I guess it is very probable. However, what have  
      been released so far is that Brazilian companies are investing abroad  
      through subsidiaries in order to reach investment protection.

      According to a U.S. diplomatic cable published by WikiLeaks we had  
      this case in Bolivia a few years ago (See  

      http://files.vpro.nl/wikileaks/cable/2007/05/07BRASILIA833.html)

      "¶3. (SBU) Itamaraty Bolivia desk officer XXXXX confirmed to XXXXX  in  
      a May 9 conversation the outline of Petrobras' response so far,  
      including the May 10 deadline for a response to Petrobras' offer.  
      Petrobras, he noted, made this investment through a Dutch subsidiary  
      and therefore could use the option it has under the  
      Bolivia-Netherlands bilateral investment treaty to compel binding  
      international arbitration. XXXX stated that despite Petrobras' May 10  
      deadline, Bolivian President Morales has said the negotiations would  
      take ten days at least."

      The same is happening in Venezuela with Brazilian companies and the  
      information is available since many of these contracts have been  
      published in the Gaceta Oficial.

      Further, I would like to point out the Agreement of Trade and Economic  
      Cooperation between Brazil and the United States signed in 2011. The  
      Agreement establishes a road map for future trade negotiations and a  
      bilateral Commission which will carry out a work program including,  
      among other tasks, "regulatory issues affecting trade and investment".  
      Hence, at least the U.S. government is seeking for some guarantees to  
      secure U.S. investments in Brazil. (Text of the ATEC  

      http://brazil.usembassy.gov/trade-agreement.html)


      Best,

      Julian


      Julian Cardenas Garcia

      Doctoral Fellow
      Research Center on Investment and
      International Trade Law
      CREDIMI - Université de Bourgogne
      4 Boulevard Gabriel 21000 Dijon France
      T: +33 3 45 18 11 11
      Julian.cardenas@...

      http://credimi.u-bourgogne.fr/




      Hernando Diaz-Candia <hernando.diaz@...> a écrit :

      > I agree with Ricardo U.  I would also point to the very obvious  
      > example of Brazil which, as one of the BRICS, has attracted  
      > substantial foreign investments without BITs.  But now that Brazil  
      > has begun to export investments, I would respectfully ask companies  
      > like Petrobras, Odebrecht, Embraer and many others whether or not  
      > they would like to see (or are already lobbying) their own  
      > government (parliament or equivalent) ratify some BITs. Isn't  
      > expansion of those companies outside of Brazil good for the latter?
      >
      > From: Oil-Gas-Energy-Mining-Infrastructure Dispute Management  
      > [
      mailto:OGEMID@...] On Behalf Of  
      > ricardo.urdaneta@...
      > Sent: Monday, April 16, 2012 5:02 PM
      > To: OGEMID@...
      > Subject: Re: Do States really need Investment Law ?
      >
      > Me. Manciaux:
      >
      > I suggest one should think of BITS as an escape valve: if they do  
      > not exist, countries will go back to diplomatic claims and heavy  
      > handed pressure from more powerful States on less powerful ones.  
      > With BITS the issue becomes one between the private party (not its  
      > government) and the investment receptor State. They have to sort it  
      > out in tribunals rather than with gunboats. In that sense they  
      > protect States from their more powerful brethren, and help keep the  
      > peace by sending influential individuals in investing economies to  
      > tribunals rather that to lobbyists (not that this doesn't happen  
      > anyway, but it could be much worse and lobbyists could be asking for  
      > far more arbitrary measures).
      >
      > Investor arbitration has been perceived so far as biased and  
      > one-sided because most of the investments flow from developed  
      > economies towards developing ones, but that is changing, and with  
      > this change so will the perception change. As this evolves, it will  
      > be very interesting to see how governments in developed economies  
      > handle the issue. For example, what happens if the Euro collapses  
      > and, say, Arab or Chinese investments turn sour?
      >
      > In short, the usefulness of BITS is not to attract investment, but  
      > rather to keep matters (comparatively) civil when the investment  
      > goes wrong.
      >
      > Best,
      > Ricardo Urdaneta
      > Urdaneta Holguín Abogados
      > Calle 67 # 4A-71
      > Bogotá, Colombia
      >
      > Tel.: (57-1) 249 5080
      > Fax: (57-1) 249 6363
      >
      www.uhalaw.com<http://www.uhalaw.com>
      >
      > The information contained in this e-mail and/or any of its  
      > attachments constitutes privileged and confidential attorney-client  
      > information.
      >
      >
      >
      > On Apr 16, 2012, at 7:41 AM, Sébastien Manciaux wrote:
      >
      >
      > Dear all,
      >
      > The more I think, the more I am convinced that States do not need  
      > Investment Law, especially as it is conceived in BITs.
      > Studies on the link to be made between the conclusion of BITs and  
      > flows of FDIs are far from being conclusive : States do not need  
      > BITs to attract FDIs.
      > And, as evidenced by ICSID cases (and others), States do not need  
      > either BITs' rules in order to act against foreign investors when  
      > they consider that these investors have not complied with  
      > obligations contained in a contract or in municipal laws or  
      > regulations.
      > Such a view makes fairly useless criticisms against the unbalanced  
      > nature of Investment law (and of Investment Arbitration) : one can  
      > not really understand it without an overall vision of the  
      > relationship between a State and a foreign investor that far exceeds  
      > the part of this relationship regulated by BITs.
      >
      > Some thoughts ?
      >
      >
      > Best regards,
      >
      > Sébastien
      >
      >
      > Sébastien Manciaux
      > Maître de conférences à l'Université de Bourgogne
      > Membre du CREDIMI
      > 4, Bd Gabriel, 21000 Dijon
      > tel 33 (0)3 80 39 53 93
      > fax 33 (0)3 80 39 55 71
      >
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