Publicist

From Promise to Practice: Towards a Functional Assessment of the Office of Accountability of the Overseas Private Investment Corporation

By Brian Cochran*

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At the close of 2009, the Office of Accountability (“OA”) for the Overseas Private Investment Corporation (“OPIC”) released a ground-breaking report on activities since its formation.[1] To date, no independent review of the effectiveness of OA in meeting its congressional and internal policy mandates has been conducted, nor have OA outcomes been collectively scrutinized. In an attempt to rectify this deficiency, this paper critically analyzes OA’s contribution with the objective of increasing its effectiveness as a government agency and realizing its potential as a pacesetter for other international financial institutions (“IFIs”).

As Dr. Jean Aden, OA’s first Director, recently handed over the reins of leadership, her successor faces a unique opportunity to improve a young but critical office.[2] His success will depend, in part, on civil society’s willingness to independently verify OA’s activities and effectiveness.

Continue reading "From Promise to Practice: Towards a Functional Assessment of the Office of Accountability of the Overseas Private Investment Corporation" »

By Eric Engle[1]

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Introduction

In the post-war era, certainly in the post-Soviet era, a global norm erga omnes has arisen: “aut dedere, aut judicare”:[2] a state must either extradite or prosecute persons residing on their territory who have violated peremptory norms of international law (i.e., jus cogens).[3] The norm is potentially powerful in the protection of human rights and could prevent international criminals from residing in safe exile while relying on misappropriated wealth to bribe local officials.

Recently, Belgium has brought a case to the International Court of Justice (“ICJ”), seeking to compel Senegal to either extradite or try the former Chadean Head of State, Hissène Habré. Habré had committed various brutal violations of human rights during his rule[4] in violation of the Convention Against Torture (“CAT”)[5] and customary international law.[6] The case is still in the preliminary stages. Nevertheless, it raises several issues which have been litigated before and which are of burning interest for international law and indeed for international relations.

By Paul B. Maslo[1]

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Introduction

In order for a transaction to be covered by an international investment agreement (“IIA”), such as a bilateral investment treaty (“BIT”), it must qualify as an “investment.” For example, the BIT between the United States and Rwanda specifies that it only applies to investors of the other party (i.e., a party that has made an investment) and covered investments.[2] Accordingly, whether a transaction qualifies as an investment can mean the difference between having to litigate a breach of contract claim against a foreign government in the host country’s courts and bringing a claim under a governing IIA and having the dispute settled by an international arbitration tribunal in a neutral forum.

The question of what constitutes an “investment” is largely dependent upon how the term is defined in the IIA at issue. But, even with the most explicit definition, the tribunal still exercises a fair amount of discretion. To illustrate the bounds of this discretion in determining whether something constitutes an investment, it is useful to consider three recent arbitration decisions, which also highlight the importance of including specific investment-related language in IIAs.

Continue reading "Definition of Investment: Gatekeeper to Investment Treaty Arbitration" »

By Philip Clifford[1] and Hussein Haeri[2]

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Introduction

London is a leading centre for international dispute resolution. At the heart of London’s appeal is the sophistication and certainty of English law and the reliability of its courts. Since the enactment of the Arbitration Act in 1996, few issues have caused as much confusion and uncertainty in English arbitration law and practice as the Court of Appeal decision in Jivraj v. Hashwani, rendered on 22 June 2010.[3] The case has thrown long settled practice and contract drafting into turmoil and left many practitioners wondering if this is a temporary blip soon to be overturned by the Supreme Court or a long lasting and important change in the way many arbitral tribunals must be selected in the future. This uncertainty is dangerous for parties, the lawyers representing them and indeed for London and the other centres for arbitration impacted by this decision.

Continue reading "Jivraj v. Hashwani: Arbitrator Nationality and the Law of Unintended Consequences" »

Extradite or Prosecute? Belgium v. Senegal

By Eric Engle[1]

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Introduction

In the post-war era, certainly in the post-Soviet era, a global norm erga omnes has arisen: “aut dedere, aut judicare”:[2] a state must either extradite or prosecute persons residing on their territory who have violated peremptory norms of international law (i.e., jus cogens).[3] The norm is potentially powerful in the protection of human rights and could prevent international criminals from residing in safe exile while relying on misappropriated wealth to bribe local officials.

Recently, Belgium has brought a case to the International Court of Justice (“ICJ”), seeking to compel Senegal to either extradite or try the former Chadean Head of State, Hissène Habré. Habré had committed various brutal violations of human rights during his rule[4] in violation of the Convention Against Torture (“CAT”)[5] and customary international law.[6] The case is still in the preliminary stages. Nevertheless, it raises several issues which have been litigated before and which are of burning interest for international law and indeed for international relations.

Definition of Investment: Gatekeeper to Investment Treaty Arbitration

By Paul B. Maslo[1]

[ PDF version ] [ Go to comments ]

Introduction

In order for a transaction to be covered by an international investment agreement (“IIA”), such as a bilateral investment treaty (“BIT”), it must qualify as an “investment.” For example, the BIT between the United States and Rwanda specifies that it only applies to investors of the other party (i.e., a party that has made an investment) and covered investments.[2] Accordingly, whether a transaction qualifies as an investment can mean the difference between having to litigate a breach of contract claim against a foreign government in the host country’s courts and bringing a claim under a governing IIA and having the dispute settled by an international arbitration tribunal in a neutral forum.

The question of what constitutes an “investment” is largely dependent upon how the term is defined in the IIA at issue. But, even with the most explicit definition, the tribunal still exercises a fair amount of discretion. To illustrate the bounds of this discretion in determining whether something constitutes an investment, it is useful to consider three recent arbitration decisions, which also highlight the importance of including specific investment-related language in IIAs.

Continue reading "Definition of Investment: Gatekeeper to Investment Treaty Arbitration" »

By Philip Clifford[1] and Hussein Haeri[2]

[ PDF version ] [ Go to comments ]

Introduction

London is a leading centre for international dispute resolution. At the heart of London’s appeal is the sophistication and certainty of English law and the reliability of its courts. Since the enactment of the Arbitration Act in 1996, few issues have caused as much confusion and uncertainty in English arbitration law and practice as the Court of Appeal decision in Jivraj v. Hashwani, rendered on 22 June 2010.[3] The case has thrown long settled practice and contract drafting into turmoil and left many practitioners wondering if this is a temporary blip soon to be overturned by the Supreme Court or a long lasting and important change in the way many arbitral tribunals must be selected in the future. This uncertainty is dangerous for parties, the lawyers representing them and indeed for London and the other centres for arbitration impacted by this decision.

Continue reading "Jivraj v. Hashwani: Arbitrator Nationality and the Law of Unintended Consequences" »

Jivraj v. Hashwani: Arbitrator Nationality and the Law of Unintended Consequences

By Philip Clifford[1] and Hussein Haeri[2]

[ PDF version ] [ Go to comments ]

Introduction

London is a leading centre for international dispute resolution. At the heart of London’s appeal is the sophistication and certainty of English law and the reliability of its courts. Since the enactment of the Arbitration Act in 1996, few issues have caused as much confusion and uncertainty in English arbitration law and practice as the Court of Appeal decision in Jivraj v. Hashwani, rendered on 22 June 2010.[3] The case has thrown long settled practice and contract drafting into turmoil and left many practitioners wondering if this is a temporary blip soon to be overturned by the Supreme Court or a long lasting and important change in the way many arbitral tribunals must be selected in the future. This uncertainty is dangerous for parties, the lawyers representing them and indeed for London and the other centres for arbitration impacted by this decision.

Continue reading "Jivraj v. Hashwani: Arbitrator Nationality and the Law of Unintended Consequences" »