Final Award Research Articles

6. Permanent Court of Arbitration (PCA)

At the end of 2015, the PCA was acting as registry in six inter-state arbitrations. Out of these, two cases involved environmental issues. These were: (1) the Arbitration between the Republic of Croatia and the Republic of Slovenia Relating to Territorial and Maritime Issues and (2) the Republic of Philippines v People’s Republic of China. This case took an interesting turn with the Croatian media reporting a leak of confidential information related to arbitral tribunal deliberations on the issue of the final award. The so-called telephonic conversation between Jernej Sekolec, the arbitrator appointed by Slovenia, and Simona Drenik, agent of Slovenia, was taped and published. It raised serious concerns regarding confidentiality and integrity in the entire arbitration process. It led to the resignation of both the arbitrator and the agent. Nevertheless, in a letter dated 24 July, the Croatian side expressed shock at the untenable behaviour of the Slovenian arbitrator and agent, which tainted the arbitral process. They demanded immediate termination of the arbitration proceedings (<http://www.pcacases.com/web/sendAttach/1313>). In response, in a letter dated 27 July, Slovenia reiterated that the tribunal should fulfil its mandate. With the resignation of arbitrator Sekolec, it became incumbent upon Slovenia, under Article 2 of the Arbitration Agreement (2009), to appoint another arbitrator. On 28 July, Slovenia appointed Judge Ronny Abraham as its arbitrator.

Expropriation in Transition: Evolving Chinese Investment Treaty Practices in Local and Global Contexts

AbstractThe doctrine and case law on expropriation in international investment law is an unsettled area due to a variety of factors such as the diversity of interests between capital importing and exporting states, the divergence in legal, economic, and cultural concepts of property rights, and, more importantly, the regulatory role of the state in cross-border investment activities. Although China has been an active ‘treaty-maker’ in the universe of international investment arbitration, evidenced by its nearly 130 bilateral investment treaties (BITs), the notion of expropriation in these BITs is in a state of flux. This article scrutinizes the expropriation clauses in China's BITs, in particular, the Peru–China BIT and the Peru–China free trade agreement, by reference to the final award of Tza Yap Shum v. The Republic of Peru, the first Chinese BIT arbitration case. This article attempts, in a comparative context, to understand the underlying rationale for China's evolving stance on expropriation.

Conceptuality or Textuality? Understanding the Notion of Expropriation in the Context of Tza Yap Shum v. The Republic of Peru

Although China has been an active ‘treaty-maker’ in the realm of international investment arbitration as evidenced by its more than 120 bilateral investment treaties, the utility of these BITs has been very limited. Substantive standards such as expropriation and compensation have never been comprehensively tested with respect to these BITs. This article scrutinizes the concept of expropriation by reference to Chinese investment treaty jurisprudence, in particular, the final award of Tza Yap Shum v. The Republic of Peru and China’s free trade agreement with Peru, the only Chinese BIT-related ICSID case. This article critically examines, in a comparative context, the treaty interpretation methodologies employed by the tribunal in interpreting expropriation under the China-Peru BIT, which is one of the earlier Chinese BITs. A thorough study of this subject is of great significance to interpreting the terms of indirect expropriation and compensation in Chinese BITs, thereby offering more concrete foreign investment protections based on investment treaties.

Developing an inclusive curriculum of architecture for students with dyslexia

Abstract Design subjects, including architecture, tend to attract students with dyslexia. The relevant disciplinary skills of three-dimensional design and visual communications often align to these students’ academic strengths. However, as these students progress towards their final award, many appear to find the requirements for extended writing (in the forms of dissertations, reports, etc.), and self-directed personal organization and management to be problematic. A number of interventions, implemented in the architecture curriculum at Northumbria University over a period of five years, seek to provide academic support and alternative assessment methods for these students. The efficacy of these initiatives has been evaluated through a series of semi-structured interviews conducted with graduates of architecture. The enquiry concluded that the development of academic writing skills was viewed by graduating students with dyslexia as desirable with respect to further study and practice; alternative assessment methods provided both problems and opportunities in implementation. Concurrently, staff efforts to understand and manage the impact of dyslexia in higher education studies was highly appreciated in terms of developing self-efficacy and confidence in students’ abilities.

Yukos Universal Limited (Isle of Man) v The Russian Federation: A Classic Case of Indirect Expropriation

A claim of indirect expropriation is at the heart of the Yukos investment arbitration cases brought by three former shareholders of Yukos Oil Company (“Yukos”) against the Russian Federation. On July 18, 2014, the Tribunal issued its unanimous final awards in these combined cases, determining that the Russian Federation had breached its obligations under Article 13 (Expropriation) of the Energy Charter Treaty (“ECT”). The Tribunal held that while the Russian Federation “has not explicitly expropriated Yukos or the holdings of its shareholders,” nonetheless, the measures it had taken “have had an effect ‘equivalent to nationalization or expropriation.’” The Tribunal’s ruling was thus squarely founded on a finding of indirect expropriation. The Tribunal concluded that “the primary objective of the Russian Federation was…to bankrupt Yukos and appropriate its valuable assets.” With this determination of liability, the Tribunal awarded the enormous sum of over US$50 billion to the claimants for their damages.The Yukos case presents a paradigmatic example of indirect or “creeping” expropriation. Doctrinally, these Yukos arbitrations do not present a difficult case. The Tribunal’s analysis falls squarely within the legal framework for assessing indirect expropriation. The series of measures taken by the Russian Federation against Yukos are complex in their multiplicity. However, measures of a similar type have been imposed by other governments on foreign investments in other states. Aside from the sheer size and scale of this expropriation, perhaps the most remarkable aspect of the Yukos case is that no one might have expected, in a modern and globalized world in which the Russian Federation had taken steps to become more open and integrated in the world economy, that a company such as Yukos – Russia’s leading oil company and largest taxpayer – would be subjected to these measures by its own government.

Hulley Enterprises Ltd. (Cyprus) v. Russian Federation, Yukos Universal Ltd. (Isle of Man) v. Russian Federation, Veteran Petroleum Ltd. (Cyprus) v. Russian Federation

On July 18, 2014, the Arbitral Tribunal (Tribunal) constituted in accordance with Article 26 of the Energy Charter Treaty (ECT) and the 1976 UNCITRAL Arbitration Rules under the auspices of the Permanent Court of Arbitration issued its long-awaited final awards in the famous arbitral proceeding related to the demise of oil giant Yukos. The Tribunal held unanimously that a coordinated set of actions by the Russian government (including arrests, tax reassessments, fines, and the forced sale of Yukos) amounted to an indirect expropriation of Yukosin breach of Russia’s obligations under the ECT, and that Russia was liable to pay prompt, adequate, and effective compensation for that breach. The Tribunal concluded that Yukos’s claims were not barred by the company’s own illegal acts or because of the “carve-out” for taxation measures under Article 21 of the ECT. Instead, the Tribunal concluded that the claimants had contributed to the prejudice they suffered and it therefore reduced the awards and reimbursement for legal costs by 25 percent. Even accounting for this reduction, the composite final award is still, by far, the largest known arbitral award ever rendered. The Tribunal ordered the Russian Federation to pay damages totaling US$50,020,867,798, in addition to arbitral and legal costs. Post-award interest is due on any outstanding amounts of damages and costs not paid starting from January 15, 2015, and is to be compounded annually thereafter.

Indus Waters Kishenganga Arbitration (Islamic Republic of Pakistan v. Republic of India) Final Award

Arbitration — Jurisdiction — Admissibility — Costs — Assessment of evidence — Scientific evidenceEnvironment — Principles of customary international environmental law — Relevance to interpretation and application of treaty on use of river waters — Effect of hydro-electric plant on downstream use of river watersRivers — Legal regulation — Indus Waters Treaty, 1960 — Hydro-electric plant — Whether State constructing plant entitled to divert waters from one tributary of river to another — Whether such diversion necessary — Limits on right of diversion — Duty to preserve minimum flow for benefit of downstream use by other StateTreaties — Interpretation — Principles of interpretation — Object and purpose of treaty — Need to interpret provisions of the treaty in mutually reinforcing fashion — Relevance of contemporary customary international law to interpretation of 1960 treaty — Environmental law — Application — Duty to apply treaty in good faith

Crystal-clear - The '2014 Most Superlative Crystal Growth Contest' for School Classes.

To celebrate the International Year of Crystallography among the general public, a consortium of chemists, physicists and crystallographers of the University of Geneva organised in Spring 2014 an incentive crystal growth contest for Geneva scholars aged 4 to 19. Starting from a kit containing a salt and user instructions, classes had to prepare a crystal that met specific criteria according to their category of age. The composition of the salt - potassium dihydrogen phosphate (KDP) - was only disclosed to the participants during the final Awards Ceremony. This contest positively exceeded our expectations with almost 100 participating classes (ca. 1800 participants) and 54 specimens received over all categories.

Yukos Universal Limited (Isle of Man) and The Russian Federation Final Award (Part II) 18 July 2014

Yukos Universal Limited (Isle of Man) and The Russian Federation Final Award (Part II) 18 July 2014

Conceptuality or Textuality? Understanding the Notion of Expropriation in the Context of Tza Yap Shum v. The Republic of Peru

Although China has been an active ‘treaty-maker’ in the realm of international investment arbitration as evidenced by its more than 120 bilateral investment treaties, the utility of these BITs has been very limited. Substantive standards such as expropriation and compensation have never been comprehensively tested with respect to these BITs. This article scrutinizes the concept of expropriation by reference to Chinese investment treaty jurisprudence, in particular, the final award of Tza Yap Shum v. The Republic of Peru and China’s free trade agreement with Peru, the only Chinese BIT-related ICSID case. This article critically examines, in a comparative context, the treaty interpretation methodologies employed by the tribunal in interpreting expropriation under the China-Peru BIT, which is one of the earlier Chinese BITs. A thorough study of this subject is of great significance to interpreting the terms of indirect expropriation and compensation in Chinese BITs, thereby offering more concrete foreign investment protections based on investment treaties.

Yukos Universal Limited (Isle of Man) and The Russian Federation Final Award (Part I) 18 July 2014

Yukos Universal Limited (Isle of Man) and The Russian Federation Final Award (Part I) 18 July 2014

The Role of Quality in the Adjudication of Public Tenders

The quality of the goods or services that government procures is obviously a very important consideration in deciding which supplier should be awarded a particular public tender. It follows that in the regulation of public procurement, particular attention should be given to the role of quality (also called functionality) in the adjudication of public tenders and the final award decision. In South African public procurement law, the role of functionality in public tender adjudication has been a fairly controversial issue that has resulted in a continuing interaction between courts and law-makers on how and when quality should be assessed and should impact on the final award decision within the framework for public procurement found in section 217 of the Constitution. This contribution tracks the development of the role of functionality in public tender adjudication as prescribed by public procurement regulation since the enactment of the Preferential Procurement Policy Framework Act 5 of 2000, which spearheaded the development of contemporary public procurement regulation in South Africa. The analysis shows how the role of functionality has constantly changed since the enactment of the PPPFA and remains uncertain. This uncertainty relates to different interpretations of the constitutional requirements for public procurement primarily contained in section 217(1) of the Constitution. Whether functionality is used as a qualification criterion, an award criterion or both holds particular practical implications for both suppliers and contracting authorities. It is accordingly important to have certainty on this question. However, it cannot be said that the Constitution and section 217 in particular dictates one approach rather than another. The issue should thus be resolved with reference to the statutory scheme adopted under the PPPFA.Keywords: Public procurement regulation; functionality; quality; state tenders; Preferential Procurement Policy Framework Act; qualification criteria; award criteria

The Role of Quality in the Adjudication of Public Tenders

The quality of the goods or services that government procures is obviously a very important consideration in deciding which supplier should be awarded a particular public tender. It follows that in the regulation of public procurement, particular attention should be given to the role of quality (also called functionality) in the adjudication of public tenders and the final award decision. In South African public procurement law, the role of functionality in public tender adjudication has been a fairly controversial issue that has resulted in a continuing interaction between courts and law-makers on how and when quality should be assessed and should impact on the final award decision within the framework for public procurement found in section 217 of the Constitution. This contribution tracks the development of the role of functionality in public tender adjudication as prescribed by public procurement regulation since the enactment of the Preferential Procurement Policy Framework Act 5 of 2000, which spearheaded the development of contemporary public procurement regulation in South Africa. The analysis shows how the role of functionality has constantly changed since the enactment of the PPPFA and remains uncertain. This uncertainty relates to different interpretations of the constitutional requirements for public procurement primarily contained in section 217(1) of the Constitution. Whether functionality is used as a qualification criterion, an award criterion or both holds particular practical implications for both suppliers and contracting authorities. It is accordingly important to have certainty on this question. However, it cannot be said that the Constitution and section 217 in particular dictates one approach rather than another. The issue should thus be resolved with reference to the statutory scheme adopted under the PPPFA.

Les Laboratoires Servier, SAA, and others v Republic of Poland: Defining the Nature of the Police Powers 'Defence' and the Deference Applicable in Regulatory Expropriation Cases

The Les Laboratoires Servier, SAA, Biofarma, SAS, Arts et Techniques du Progres SAS v Republic of Poland, Final Award (‘Servier Award’) was rendered in 2012, but was only publicly released in late 2013 in a form less redacted than was previously available.3 The case concerned the refusal of the Republic of Poland to renew marketing approvals for the sale of the Claimants’ pharmaceuticals in Poland.4 The marketing refusals were revoked following a harmonization of Poland’s regulatory pharmaceutical law with the standards applicable under the law of the European Union (‘EU’). As a result of this harmonization, Poland reviewed all subsisting pharmaceutical marketing approvals, resulting in the denial of approval for particular products produced by the Claimants. Following the revocation by Poland of marketing approval for these products, the Claimants alleged breach of Article 5(2) (expropriation) of the Agreement of 14 February 1989 between the Government of the French Republic and the Government of the Polish People’s Republic Concerning the Mutual Promotion and Protection of Investments (‘the treaty’).5

International Arbitration: A New Mechanism to Settle Intra-State Territorial Disputes between States and Secessionist Movements? The Divorce of Sudan and South Sudan and the Abyei Question

In 2008, the Government of Sudan (GoS) and the Sudan People's Liberation Movement/Army (SPLM/A) submitted an arbitration agreement with the Permanent Court of Arbitration (PCA) in The Hague. In a unique fast track procedure, an international arbitration tribunal had to determine in accordance with the Comprehensive Peace Agreement (CPA) of 2005, in particular the Abyei Protocol and Abyei Appendix, the Interim National Constitution (INC) and general principles of law, whether the Abyei Border Commission (ABC) exceeded its mandate, which was to define and demarcate the area of the nine Ngok Dinka chiefdoms transferred to Kordofan in 1905. In case of excess, the parties entrusted the tribunal with redefining the boundaries of the disputed territory based on the parties’ submissions. To guarantee the transparency of the procedure and to generate acceptance by all stakeholders on the ground, all hearings and documents were made publically available. The procedure and the more than 200-pages-long final Award from July 2009 constitute an illustrative example of an international dispute settlement procedure dealing with an intra-state (territorial) dispute between a state and a secessionist movement. The paper asks why and how the parties initiated the arbitration procedure and evaluates the still disputed status of the Abyei Region and the record of the parties’ (non-)compliance with the Abyei Award and its role in the ongoing status-negotiations between Sudan and the newly independent South Sudan. By inter alia taking a comparative perspective with other international dispute settlements the paper critically discusses the legal-political implications of the Abyei Arbitration and whether it could serve as a model or lesson learned when it comes to the effectiveness and success of international arbitration and its potential contribution to the settlement of intra-state (territorial) disputes.

The American Pancreatic Association/Hirshberg Foundation Symposium Celebrating the 10th Anniversary of the Seed Grant Program

The Hirshberg Foundation for Pancreatic Cancer Research was founded by Agi Hirshberg in 1997, following her husband Ronald Hirshberg’s 8-month, 7-day battle with the disease. (http://www.pancreatic.org/). At the time, the Hirshberg family viewed pancreatic cancer as the ‘‘unknown enemy’’ (http:// www.pancreatic.org/site/c.htJYJ8MPIwE/b.8276835/k.66CB/ Agi_Hirshbergs_Story.htm). In the years since Ronald Hirshberg’s death, Agi Hirshberg has made it her mission to unmask the unknown for others facing the same enemy. When patients present with a new diagnosis of pancreatic cancer, most are already in an advanced stage of the disease. Pancreatic cancer is resistant to most chemotherapeutic agents and radiotherapy. These factors combine to make pancreatic cancer a highly lethal disease, and according to the National Cancer Institute (NCI) 2013 estimates, pancreatic cancer was diagnosed in approximately 45,220 US citizens, and some 38,460 died of the disease. 1 The Annual Report to the Nation on the Status of Cancer, 1975Y2009, shows that overall cancer death rates continued to decline in the United States among both men and women, among all major racial and ethnic groups, and for all of the many common cancer sites, including lung, colon and rectum, female breast, and prostate. However, this trend does not hold true for pancreatic cancer. The report demonstrates that death rates continued to increase during the latest time period (2000 through 2009) for pancreatic cancer. 2 Only about 23% of patients with cancer of the pancreas will still be living 1 year after diagnosis, and only about 4% will survive 5 years. Even for those diagnosed with pancreatic cancer that has not spread to other organs or systems, the overall 5-year survival rate approaches only 15%. The Hirshberg Foundation’s vision is to advance pancreatic cancer research and provide information, resources, and support to pancreatic cancer patients and their families. The mission of the Foundation is as follows: & To find a cure for pancreatic cancer in honor of Ron Hirshberg and the thousands of people who are diagnosed with this disease each year. & To create a premier Pancreatic Cancer Center where all needs of pancreatic cancer patients can be met in one location with the most advanced treatment options. & To be recognized as a patient support reference source for

6. Permanent Court of Arbitration (PCA)

At the end of 2014, the PCA was acting as registry in six inter-state arbitrations, fifty-three investor-state arbitrations, and thirty-six other arbitrations. Out of these, three cases involved environmental issues. These were: (1) the Arbitration between the Republic of Croatia and the Republic of Slovenia Relating to Territorial and Maritime Issues; (2) the Republic of Mauritius v the United Kingdom of Great Britain and Northern Ireland; and (3) the Republic of the Philippines v the People’s Republic of China. On 7 July, the Arbitration Tribunal delivered the final award that settled the maritime boundaries between Bangladesh and India (In the Matter of the Bay of Bengal Maritime Boundary Arbitration (Bangladesh/India), Award, 7 July 2014, <http://www.pca-cpa.org/showpage.asp?pag_id=1376>). The tribunal was presided over by Judge Rüdiger Wolfrum (Germany) and had...

Clash of “autonomous legal orders”: Can EU Member State courts bridge the jurisdictional divide between investment tribunals and the ECJ? A plea for direct referral from investment tribunals

Investor-State arbitration based on intra-EU BITs is often seen as a threat to the ECJ's authoritative power of interpretation, because relevant questions of EU law may never reach the ECJ. This, however, is only true if investment treaty arbitration is treated in the same way as commercial arbitration, where arbitral tribunals are not allowed to make preliminary references to the ECJ (see Nordsee and Eco Swiss). This conventional approach, as illustrated by the recent case of Eurekov. Slovak Republic, relies on the supervisory powers of the EU Member State courts in international (commercial) arbitration, focusing on the reviewability of EU public policy. This article argues that the case law of the ECJ could be interpreted in a way that would allow investment tribunals to make direct references for a preliminary ruling. If references from investment tribunals to the ECJ were allowed, as a matter of law, there would be no bypassing of the ECJ and therefore no threat to the EU judicial system. The advantages of the proposed system of direct referral would be that investment tribunals could refer any question of EU law at any stage of the arbitration proceedings. This would enhance the role of EU law and alleviate the risk that any final award eventually proves unenforceable within the EU for breach of EU public policy. This would not only be more efficient but also create legal certainty and better respect investment treaty law and arbitration within the EU.

Practical Suggestions to Promote the Legitimacy and Vitality of International Investment Arbitration

Investor–State arbitration has become an integral fixture in today’s global commerce. The facility meets an evident demand for neutral fora able to resolve disputes between sovereigns and foreign investors and to establish minimum international standards that guide future conduct. Along with the growth in international commerce, the number of investment arbitrations has burgeoned over the past two decades. The prestige of the institution has been enhanced by the intellectual and ethical caliber of the arbitrators, who have concluded hundreds of arbitrations without scandal or corruption. In many ways a remarkable success, investor–State arbitration is nascent, and concerns about its legitimacy and efficacy could imperil its future. Some doubt the propriety of private arbitrators judging the acts of sovereign nations against often-malleable principles of international law. Others see diminished utility in the final awards, which typically are slow in coming, expensive, and both too narrow and too long. Critical to the continued vitality of the enterprise is how the arbitral bench and bar respond to its evolution. This note discusses some of the challenges and offers a few practical suggestions for the future. Whether to promote confidence in the rule of law or as a matter of commercial necessity, many States have consented by treaty or statute to resolve disputes with foreign investors through international arbitration. The confluence of foreign investment and State involvement in the marketplace has led to increasingly large and complex international disputes. With billions of dollars and the legitimacy of sovereign acts at stake, these cases are subject to intense public scrutiny and carry with them sensitive political and social issues. Despite their importance, these arbitrations are typically decided on narrow grounds, with more space in the award dedicated to rehearsing the parties’ arguments than to elaborating the reasons for the panel’s decision. Belated and costly decisions that do little to guide future conduct risk alienating parties and undermining the relevance and credibility of the institution. 1 The authors are members of Jones Day’s Global Disputes Practice Group and adjunct professors at Washington & Lee University School of Law. The views expressed are their own and should not be attributed to their Firm or its clients.

Procedural Issues Relating to Shared Responsibility in Arbitral Proceedings

International arbitration is a particularly suitable dispute resolution mechanism for addressing shared responsibility issues, due to its flexible procedural rules allowing for a multitude of parties, including states and non-state actors. This article analyses six procedural rule-sets (United Nations Commission on International Trade Law, Permanent Court of Arbitration, International Centre for the Settlement of Investment Disputes, International Law Commission (ICC), International Bar Association (IBA) and the European Union special regime) from three angles: first, bringing the relevant (co-responsible) parties before the tribunal, including constitution of the tribunal, jurisdiction and determination of claimant and respondent status. Secondly, handling multi-party disputes in terms of evidence and fact-finding, joinder and consolidation of proceedings. Thirdly, regarding absent (co-responsible) parties, addressing intervention and the effect of provisional measures and final awards. Most rule-sets provide guidance for most of these issues, with particularly remarkable foresight in the IBA and ICC rules. These are primarily aimed at regulating international commercial arbitration, but can with some modification also be applied in international public arbitration. The key recommendation is for drafters to anticipate shared responsibility claims at the outset by including appropriate procedural rules when the agreement is being negotiated.