Lingo Flashcards
Annulment committee
The ICSID committee that can review and annul investment arbitration awards.
Anti-suit injunction
R&H 5.134: A court order restraining a party from commencing or continuing proceedings in another court of another state.
Appointing authority
R&H 4.45: Body or person appointing the arbitrator(s), could be a court, arbitral institution, the PCA, etc.
Arbitrability
R&H 1.64: Capable of settlement by arbitration
Bi-lateral investment treaty
Treaty between two states for the protection of investment from the home state by the host state.
Calvo doctrine
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.
Chilling effect
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.
Concession agreement
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.
Convergence
Hanotiau: the idea that national laws and institutional rules on arbitration are becoming more similar around the world.
Denationalisation/delocalisation
R&H 3.74: The detachment of an international commercial arbitration from control by the law of the place in which it is held.
Diagonal clause
R& H 8.08: Clause in a bilateral investment agreement establishing the consent of the State to arbitrate with covered investors.
Disciplinary bias
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.
Economic equilibrium clause
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.
Ex aequo et bono
R&H 3.196: The application by arbitrators of principles other than legal norms to the substance of the dispute.
Expedited procedure
R&H 6.249ff: Arbitral procedures aimed at speeding up the arbitral process eg under LCIA Rules Art. 9.
Fair and equitable treatment
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.
FCN Treaty
R&H 8.03: Treaty of Friendship, Commerce and Navigation – the forerunner of the modern investment treaty.
Foreign direct investment
Sornorajah 9: Physical property and other assets directly invested in a foreign host country.
Fork in the road provision
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.
Grounds for refusal
R&H 11.55: Provisions contained in New York Convention 1958 Article V.
Gunboat diplomacy
R&H 8.01: The practice of sending the navy in to resolve a trade dispute.
Impartiality
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.
Independence
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.
Interim measures
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.
Investment
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.
Judicialisation
Hanotiau: The increasing institutionalization of arbitration making arbitration more similar to dispute resolution by courts.
Justiciability
Capable of being resolved by law.
Kompetenz-kompetenz
R&H 5.99: The power of the arbitral tribunal to decide on its own jurisdiction.
Lex arbitri
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.
Lex Curia
Same as lex arbitri.
Lex mercatoria
R&H 3.167: Rules and practices which have evolved within the international business communities.
MAI
Sornorajah 67: Multilateral Agreement on Investment formulated by the OECD: alternative to bilateral investment agreements but which failed to be established and adopted.
Model law
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.
Most-favoured-nation clause
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.
NAFTA
Agreement between North American states: contains provisions designed to protect cross-border investors and facilitate the settlement of investment disputes.
New global lex mercatoria
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.
New new global lex mercatoria
Michaels: the codification of rules and institutionalization of increasingly court-like arbitration.
New York Convention
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.
Over-disclosure
The risk associated with complying with the disclosure requirements on arbitrators contained in many arbitration rules.
Party autonomy
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..
Pathological clause
R&H 2.181: An arbitration clause that is invalid because it is unclear, ambiguous or nonsensical.
Pro-enforcement bias
The attitude of the New York Convention and also the English courts to the recognition and enforcement of arbitral awards.
Public policy
Washington Convention and Arbitration Act: One of the grounds for the refusal of recognition or enforcement of an arbitral award.
Regulatory taking
Regulation that undermines the investment’s commercial viability may be deemed as a ‘taking’ of property and require the host state to pay compensation
Repeat arbitrators
Problem discussed by Slaoui resulting from the fact that there is a very small pool of arbitrators regularly used by parties.
Separability
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.
Stabilisation clause
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.
Umbrella clause
R&H 8.43: Clause in a BIT in which the treaty apparently elevates contractual rights to the level of treaty rights.
Washington Convention
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.
