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Selected aspects of resolving international investment disputes
Skolil, Ivo ; Balaš, Vladimír (advisor) ; Trapl, Vojtěch (referee)
Resumé This thesis on selected aspects of the resolution of the international investments disputes tackles the challenge of the arbitrator under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States. Its main aim is to analyze current legal regulation of the arbitrator's qualification and the following challenge procedures. Further to analyze, how is current international practice with regard to issue of impartiality and independence of arbitrators in case law of the International Centre for Settlement of Investment Disputes. Upon such analysis to reveal shortcuts of the legal regulation and case law and propose future improvements for the whole system of the arbitrators' challenges. The thesis itself is dividing into chapters, the first chapter deals with the arbitrators' qualifications and challenges in the international investment arbitration. Further refers to the interpretation of relevant articles of the Washington Convention by arbitral tribunals and to conclusions formulated by them in challenge decisions. The second chapter is base on the comparison between arbitrators' challenges and qualifications in the international investment arbitration and the international commercial arbitration, where is main target to analyze differences of both systems....
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Recent Trends in Fair and Equitable Treatment in Investment Arbitration
Hrčka, Daniel ; Balaš, Vladimír (advisor) ; Šturma, Pavel (referee)
(English) Often evoked by investors before arbitral tribunals and at the same time causing controversy and uncertainty with regard to its contents. Fair and equitable treatment standard of protection (FET) suffers from its vague formulation in bilateral investment treaties but simultaneously this characteristic enables it to fulfil the function of filling gaps left by other standards of protection. This results in a fact that uniform understanding of the standard seems impossible to achieve. Inherent dispute on whether FET amounts only to minimum standard of treatment under customary international law or is rather an autonomous standard is also embodied in various wordings of FET clauses present in the treaties. Unless specific link to minimum standard is made, almost all methods of legal interpretation prove that FET is an autonomous concept. Enumeration of sub-elements of FET in clauses will also not achieve certainty mainly because of disputes on contents of some of these sub-elements. Effort to shed more light on the contents of the standard is achieved by evaluation of values of rule of law as well as requirements of morality and legality (necessary for functioning of every legal system) presented by legal philosopher Lon Fuller. A set of universally accepted principles is extracted from these...
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Host-State Counterclaims in Investment Arbitration: Holding Investors Accountable for Human Rights Violations
Klímová, Nikola ; Balaš, Vladimír (advisor) ; Šturma, Pavel (referee)
1 Abstract Host-State Counterclaims in Investment Arbitration: Holding Investors Accountable for Human Rights Violations International investment arbitration has been long criticized for its structural bias against host states in favour of the defence of the interests of investors. The one-way character of this dispute settlement mechanism has been, however, recently challenged in the light of numerous cases in which arbitrators were confronted with counterclaims of host states, requesting damages for investors' illegal conduct. To successfully assert counterclaims in arbitral proceedings, host states have to deal with a series of difficulties. The submission of a dispute to an arbitral tribunal first requires consent both on the part of an investor and a host state. Its scope is determined by the language of dispute settlement provisions in international investment agreements. While these instruments generally accept a wide range of investors' claims related to their investments, counterclaims of host states fall within the jurisdiction of tribunals only if the international investment agreements contain a dispute settlement clause with broad wording. The second condition which concerns the admissibility of host states' counterclaims is their close connection with the primary claims advanced by investors....
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Third Party funding in international investment arbitration
Juráš, Jan ; Balaš, Vladimír (advisor) ; Šturma, Pavel (referee)
1 Third Party Funding in International Investment Arbitration ABSTRACT Third-Party Funding (TPF) in investment arbitration is a relatively new, but fast-growing phenomenon that is attracting a lot of attention as besides providing certain benefits, it is also connected with significant risks that could endanger the entire Investor-state dispute settlement system. This system is heavily criticized for its imbalance and for favouring investors in the arbitrages. The increasing use of TPF can even further disrupt this already fragile and unbalanced system of dispute resolution. Traditionally, TPF was used as a way of access to justice, as the external party, which was not connected to the dispute, has decided to provide finances to one of the parties of the dispute so this party would be able to initiate an impartial legal dispute settlement. International investment arbitrations have become very expensive in the last decades, and thus TPF seemed to be an ideal way of how to help an insolvent investor to access justice against states that have violated their obligations arising from investment treaties. However, ever since the 2008 financial crisis, TPF in investment arbitration has become a very profitable business operated by several big litigation funding companies. These corporations are conducting a very...
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Implications of Termination of International Investment Agreements
Trpišovská, Denisa ; Balaš, Vladimír (advisor) ; Šturma, Pavel (referee)
1 ABSTRACT Implications of Termination of International Investment Agreements The international investment arbitration proceedings under the Washington Convention on the Settlement of Investment Disputes between States and Nationals of Other States ("ICSID arbitration proceedings" and "ICSID Convention") represents predominantly used mechanism of Investor-state dispute settlement. The adjudicative system of investment arbitration resolving disputes concerning breaches of foreign investment protection within the territory of the host states granted by bilateral investment treaties ("BITs") faces increasing criticism. The reluctance to abide by the binding awards of the arbitral tribunals on behalf of the host states and evolving displeasure towards the ICSID arbitration system triggered the wave of terminations of international investment agreements initiated by the states of the Latin America. Termination of international investment agreements significantly disturbs the procedural protection of foreign investments and ultimately deprives the foreign investors of the right to have their claims against the host states heard in designated arbitration forum. The ICSID arbitration proceedings are characteristic for the interconnection between international investment agreements, particularly the ICSID Convention...
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International Arbitration and its roots
Šídlová, Kateřina ; Balaš, Vladimír (advisor) ; Tymofeyeva, Alla (referee)
International Arbitration and its roots Arbitration, or in other words peaceful settlement of the dispute, is currently one of the most used methods of settlement of the disputes both on international and national levels. Considering the high augmentation of the disputes resolved through the means of arbitration especially in the last twenty years of this century the arbitration can boldly compete with the judicial resolution of the disputes in popularity and in the number of resolved cases. Considering the augmentation of use of arbitration clauses especially in the private law contracts, there is often a wrong idea, that the process of arbitration is primary an institute of the private law and that it is a new institute, which has been created in the modern times and historically did not exist at all. In chapters four till six of my thesis I will be focusing on proving that roots of today so often used institute of arbitration run deep in the history, till the times of Ancient Greece even, which was the cradle of the civilization as well as of the arbitration. Subsequently I will in this part map the evolution of the arbitration during the two thousand years of its existence, when on this I will show which aspects of the arbitration prevailed to these days and in which aspects contrary is the...
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Host-State Counterclaims in Investment Arbitration: Holding Investors Accountable for Human Rights Violations
Klímová, Nikola ; Balaš, Vladimír (advisor) ; Šturma, Pavel (referee)
1 Abstract Host-State Counterclaims in Investment Arbitration: Holding Investors Accountable for Human Rights Violations International investment arbitration has been long criticized for its structural bias against host states in favour of the defence of the interests of investors. The one-way character of this dispute settlement mechanism has been, however, recently challenged in the light of numerous cases in which arbitrators were confronted with counterclaims of host states, requesting damages for investors' illegal conduct. To successfully assert counterclaims in arbitral proceedings, host states have to deal with a series of difficulties. The submission of a dispute to an arbitral tribunal first requires consent both on the part of an investor and a host state. Its scope is determined by the language of dispute settlement provisions in international investment agreements. While these instruments generally accept a wide range of investors' claims related to their investments, counterclaims of host states fall within the jurisdiction of tribunals only if the international investment agreements contain a dispute settlement clause with broad wording. The second condition which concerns the admissibility of host states' counterclaims is their close connection with the primary claims advanced by investors....
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Investment Protection in the European Union
Olík, Miloš ; Pauknerová, Monika (advisor) ; Feigerlová, Monika (referee) ; Ondřej, Jan (referee)
1 Abstract This dissertation deals with investment protection in the European Union from several points of view. The first part deals with the history of investment protection and its main basis and grounds for current legislation and proposals for future regulation, particularly within the EU. In subsequent parts, current legislation and intra-European Union investment protection is analysed in detail, including the question of validity and applicability of Intra-EU BITs, i.e. bilateral treaties concluded between two EU Member States. The analysis is made from the perspective of EU law, as well as from the point of view of public international law. The dissertation further deals with their relationship and demonstrates contradictions between them in two crucial cases, Eureko/Achmea and Micula. Additional themes of this dissertation are the powers of the European Union regarding investment protection and the conclusion of international treaties such as CETA and TTIP. This dissertation further deals with the status, jurisdiction and functioning of the International Centre for Settlement of Investment Disputes (ICSID), demonstrating the relatively smooth and widely accepted investment dispute settlement mechanism. In this regard, the proposed EU Multilateral Investment Court project in analysed, including a...
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Recent Trends in Fair and Equitable Treatment in Investment Arbitration
Hrčka, Daniel ; Balaš, Vladimír (advisor) ; Šturma, Pavel (referee)
(English) Often evoked by investors before arbitral tribunals and at the same time causing controversy and uncertainty with regard to its contents. Fair and equitable treatment standard of protection (FET) suffers from its vague formulation in bilateral investment treaties but simultaneously this characteristic enables it to fulfil the function of filling gaps left by other standards of protection. This results in a fact that uniform understanding of the standard seems impossible to achieve. Inherent dispute on whether FET amounts only to minimum standard of treatment under customary international law or is rather an autonomous standard is also embodied in various wordings of FET clauses present in the treaties. Unless specific link to minimum standard is made, almost all methods of legal interpretation prove that FET is an autonomous concept. Enumeration of sub-elements of FET in clauses will also not achieve certainty mainly because of disputes on contents of some of these sub-elements. Effort to shed more light on the contents of the standard is achieved by evaluation of values of rule of law as well as requirements of morality and legality (necessary for functioning of every legal system) presented by legal philosopher Lon Fuller. A set of universally accepted principles is extracted from these...
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Selected aspects of resolving international investment disputes
Skolil, Ivo ; Balaš, Vladimír (advisor) ; Trapl, Vojtěch (referee)
Resumé This thesis on selected aspects of the resolution of the international investments disputes tackles the challenge of the arbitrator under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States. Its main aim is to analyze current legal regulation of the arbitrator's qualification and the following challenge procedures. Further to analyze, how is current international practice with regard to issue of impartiality and independence of arbitrators in case law of the International Centre for Settlement of Investment Disputes. Upon such analysis to reveal shortcuts of the legal regulation and case law and propose future improvements for the whole system of the arbitrators' challenges. The thesis itself is dividing into chapters, the first chapter deals with the arbitrators' qualifications and challenges in the international investment arbitration. Further refers to the interpretation of relevant articles of the Washington Convention by arbitral tribunals and to conclusions formulated by them in challenge decisions. The second chapter is base on the comparison between arbitrators' challenges and qualifications in the international investment arbitration and the international commercial arbitration, where is main target to analyze differences of both systems....
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