Lingo

Question 1

Annulment committee

Answer 1

The ICSID committee that can review and annul investment arbitration awards.

Question 2

Anti-suit injunction

Answer 2

R&H 5.134: A court order restraining a party from commencing or continuing proceedings in another court of another state.

Question 3

Appointing authority

Answer 3

R&H 4.45: Body or person appointing the arbitrator(s), could be a court, arbitral institution, the PCA, etc.

Question 4

Arbitrability

Answer 4

R&H 1.64: Capable of settlement by arbitration

Question 5

Bi-lateral investment treaty

Answer 5

Treaty between two states for the protection of investment from the home state by the host state.

Question 6

Calvo doctrine

Answer 6

R&H 8.02: Doctrine from the early 20th C. whereby foreign investors should be in no better position than local investors with their rights and obligations to be determined through the exclusive jurisdiction of the courts of that state.

Question 7

Chilling effect

Answer 7

Cotula 18: The effect of stabilization clauses making it more difficult for host states, particularly poorer ones, to comply with evolving international law and improve the social and environmental standards applicable to investment projects within their jurisdiction — particularly when such efforts would raise project costs.

Question 8

Concession agreement

Answer 8

A negotiated contract between a company and a government that gives the company the right to operate a specific business within the government’s jurisdiction, subject to certain conditions.

Question 9

Convergence

Answer 9

Hanotiau: the idea that national laws and institutional rules on arbitration are becoming more similar around the world.

Question 10

Denationalisation/delocalisation

Answer 10

R&H 3.74: The detachment of an international commercial arbitration from control by the law of the place in which it is held.

Question 11

Diagonal clause

Answer 11

R& H 8.08: Clause in a bilateral investment agreement establishing the consent of the State to arbitrate with covered investors.

Question 12

Disciplinary bias

Answer 12

Shalakany’s argument that arbitrators and international lawyers tacitly follow the assumptions that arbitration is about resolving contractual disputes, not political controversies, that arbitration is between equals and that it deals with private law questions, not public questions of sovereignty.

Question 13

Economic equilibrium clause

Answer 13

R&H 3.123: A clause that attempts to maintain the original economic equilibrium of the parties at the time of contracting, where subsequent measures might otherwise alter the expected economic benefits to which the parties have subscribed.

Question 14

Ex aequo et bono

Answer 14

R&H 3.196: The application by arbitrators of principles other than legal norms to the substance of the dispute.

Question 15

Expedited procedure

Answer 15

R&H 6.249ff: Arbitral procedures aimed at speeding up the arbitral process eg under LCIA Rules Art. 9.

Question 16

Fair and equitable treatment

Answer 16

R&H 8.59: One of the most commonly evoked treatment standard in investment arbitration: arbitral tribunals have considerable discretion to interpret what fair and equitable means.

Question 17

FCN Treaty

Answer 17

R&H 8.03: Treaty of Friendship, Commerce and Navigation – the forerunner of the modern investment treaty.

Question 18

Foreign direct investment

Answer 18

Sornorajah 9: Physical property and other assets directly invested in a foreign host country.

Question 19

Fork in the road provision

Answer 19

A clause in many investment treaties that provides that investors may choose to submit a dispute either to the local courts of the host state or to arbitration, and, once made, the choice is final.

Question 20

Grounds for refusal

Answer 20

R&H 11.55: Provisions contained in New York Convention 1958 Article V.

Question 21

Gunboat diplomacy

Answer 21

R&H 8.01: The practice of sending the navy in to resolve a trade dispute.

Question 22

Impartiality

Answer 22

R&H 4.72 ff: Essential quality of an arbitrator, connected with the actual or apparent bias of an arbitrator, either in favour of one of the parties or in relation to the issues in dispute, measured by a subjective test.

Question 23

Independence

Answer 23

R&H 4.72 ff: Essential quality of an arbitrator, concerned exclusively with questions arising out of the relationship between the arbitrator and the parties measured through an objective test.

Question 24

Interim measures

Answer 24

R&H 5.24ff and 7.23ff: Measures issued in situations of urgency during the process of arbitration before the final award by the arbitral tribunal or a competent court.

Question 25

Investment

Answer 25

Usually defined as “any kind of asset” in a Bilateral Investment Agreement, but often defined in detail to include, e.g. moveable and immovable property and property rights, shares, stocks, bonds, claims to money, intellectual property rights and exploration and extraction rights.

Question 26

Judicialisation

Answer 26

Hanotiau: The increasing institutionalization of arbitration making arbitration more similar to dispute resolution by courts.

Question 27

Justiciability

Answer 27

Capable of being resolved by law.

Question 28

Kompetenz-kompetenz

Answer 28

R&H 5.99: The power of the arbitral tribunal to decide on its own jurisdiction.

Question 29

Lex arbitri

Answer 29

R&H 3.39: A body of rules which sets a standard external to the arbitration agreement and the wishes of the parties, for the conduct of the arbitration.

Question 30

Lex Curia

Answer 30

Same as lex arbitri.

Question 31

Lex mercatoria

Answer 31

R&H 3.167: Rules and practices which have evolved within the international business communities.

Question 32

MAI

Answer 32

Sornorajah 67: Multilateral Agreement on Investment formulated by the OECD: alternative to bilateral investment agreements but which failed to be established and adopted.

Question 33

Model law

Answer 33

UNCITRAL website: designed to assist States in reforming and modernizing their laws on arbitral procedure so as to take into account the particular features and needs of international commercial arbitration.

Question 34

Most-favoured-nation clause

Answer 34

R&H 8.37: Clause in an investment treaty ensuring an investor has access to more favourable preconditions in other treaties concluded by the host State of the investment.

Question 35

NAFTA

Answer 35

Agreement between North American states: contains provisions designed to protect cross-border investors and facilitate the settlement of investment disputes.

Question 36

New global lex mercatoria

Answer 36

Michaels: The reality of an emerging set of legal norms, procedures and institutions, as well as the romantic ideal of a spontaneous law created in, by and for commerce, independent from the state.

Question 37

New new global lex mercatoria

Answer 37

Michaels: the codification of rules and institutionalization of increasingly court-like arbitration.

Question 38

New York Convention

Answer 38

1956 Convention on the Recognition and Enforcement of Foreign Arbitral Awards which seeks to provide common legislative standards for the recognition of arbitration agreements and court recognition and enforcement of foreign and non-domestic arbitral awards.

Question 39

Over-disclosure

Answer 39

The risk associated with complying with the disclosure requirements on arbitrators contained in many arbitration rules.

Question 40

Party autonomy

Answer 40

R&H 3.94: The idea that parties are free to choose for themselves the law applicable to their commercial agreement, the method of dispute resolution, etc..

Question 41

Pathological clause

Answer 41

R&H 2.181: An arbitration clause that is invalid because it is unclear, ambiguous or nonsensical.

Question 42

Pro-enforcement bias

Answer 42

The attitude of the New York Convention and also the English courts to the recognition and enforcement of arbitral awards.

Question 43

Public policy

Answer 43

Washington Convention and Arbitration Act: One of the grounds for the refusal of recognition or enforcement of an arbitral award.

Question 44

Regulatory taking

Answer 44

Regulation that undermines the investment’s commercial viability may be deemed as a ‘taking’ of property and require the host state to pay compensation

Question 45

Repeat arbitrators

Answer 45

Problem discussed by Slaoui resulting from the fact that there is a very small pool of arbitrators regularly used by parties.

Question 46

Separability

Answer 46

R&H 2.89: Means that an arbitration clause in a contract is considered to be separate from the main contract of which it forms a part and as such surv ives the termination of that contract.

Question 47

Stabilisation clause

Answer 47

R&H 3.117: undertakings on the part of a contracting state that it will not annul or change the terms of the contract by legislative or administrative action, without the consent of the other party to the contract.

Question 48

Umbrella clause

Answer 48

R&H 8.43: Clause in a BIT in which the treaty apparently elevates contractual rights to the level of treaty rights.

Question 49

Washington Convention

Answer 49

The 1965 the Convention on the Settlement of Investment Disputes between States and Nationals of Other States which established The International Centre for Settlement of Investment Disputes.