Article from: TDM 5 (2007), in Editorial
This massive new overall issue of TDM has a series of most key think pieces, articles and numerous case comments.
We invite comments - which we would be pleased to publish - in particular on Jan Paulsson's essay on the shortcomings of domestic courts in many developing and emerging countries which sits in almost perfect contrast with Dr van Harten's critique of ad-hoc arbitration tribunals and his call for replacing "appointment-hungry" arbitrators with permanent judges in a "World Investment Court".
As usually, we have a focus on our specialty, investment disputes with contributions from leading experts such as Jan Paulsson, Michael Hwang and Christoph Schreuer. TDM continues with the publication of legal expert opinions submitted in particular in investment disputes and a large number of case comments, such as Fraport v. Philippines; MHS v. Malaysia; Sinochem v. Malaysia International Shipping; West Tankers Inc v Ras Riunione Adriatica Di Sicurita Spa & ors; Duke Energy International Peru Investments v. Republic of Peru; Repsol, YPF v. Petroecuador; Otech Pakistan Pvt Ltd v Clough Engineering Ltd; Dadourian Group International v Simms; JSC Latvijas Gaze v. The Republic of Latvia; Positive Software Solutions v. New Century Mortgage; Thunderbird v. Mexico and others.
Another highlight of this issue is of course Jeffery P. Commission's work "Precedent in Investment Treaty Arbitration: The Empirical Backing" and the associated tables. Already available for TDM subscribers for a number of months, the empirical findings of this citation analysis are presented in a fully searchable format, in essence, a "searchable precedents matrix" of the sources of law cited in each of the 207 publicly available decisions, awards, and orders rendered by these tribunals. The searchable reference tables are attached to this paper, and are as follows: (i) Table A, Precedents in ICSID Arbitration, 1972-2006 (as of December 1, 2006); (ii) Table B, Precedents in ICSID (AF) Arbitration 1978-2006 (as of December 1, 2006); and (iii) Table C, Precedent in Non-ICSID Arbitration 2000-2006 (as of December 1, 2006). The Tables are organized in reverse chronological order to demonstrate the progress of the precedential value of each award or decision over time. We are currently developing our method to provide analytically indexed and searchable investment awards.
As important as the precedents cited, Tables D and E chart the arbitrators that cited them, in both concluded and pending ICSID cases. See Table D, ICSID Arbitrators: 115 Concluded Cases, 1972-2006 (as of December 1, 2006), and Table E, ICSID Arbitrators: 103 Pending Cases, 1997-2006 (as of December 1, 2006). Later this year updated material will be published on TDM.
Also note Frederick R. Fucci's paper on equilibrium, stabilization and renegotiation clauses. These issues are currently of great practical relevance when existing contracts throughout are disrupted by fiscal and renegotiation demands due to the steeply increased oil prices. They play a considerable role in several on-going, and not public, disputes.
We also increase our coverage of advocacy-related topics (having done earlier a guideline on witness preparation) and this issue also contains a number of interesting papers on oil, gas and energy-related disputes.
Finally, we like to draw your attention to a column by Prof. Jose Alvarez, the President of the American Society for International Law, which will be published early November, discussing OGEMID as a feature of the modern "Invisible College" of practitioners, arbitrators and scholars and its innovative feature leading to a breakdown of traditional hierarchical "closed-shop" structures. See also the OGEMID discussion on this subject in the OGEMID archive.