Content Join OGEMID
 
  • Linkedin
  • Twitter
  • Rss

Transnational Dispute Management

Skip navigation

Transnational Dispute Management

The network for international arbitration, mediation and ADR, international investment law and Transnational Dispute Management

Join OGEMID

Transnational Dispute Management

The network for international arbitration, mediation and ADR, international investment law and Transnational Dispute Management

  • Sign in
  • Subscribe
  • Home
  • Sign in
  • About About
    1. Home
    2. About
    3. About TDM
    4. About TDM
    5. Founding Editor T.W. Wälde
    6. T.W. Wälde
    7. Editorial team
    8. Editorial team
    9. Contributing Authors
    10. Contributing Authors
    11. Subscriptions
    12. Subscriptions
  • Journal Journal
    1. Home
    2. Journal
    3. Browse Issues
    4. Browse
    5. Articles by Category
    6. By Category
    7. Articles by Author
    8. By Author
    9. Advance publication
    10. Advance publication
    11. Specials
    12. Specials
    13. Search
    14. Search
    15. Book reviews
    16. Reviews
  • Legal & Regulatory docs. L & r docs
    1. Home
    2. Legal & Regulatory docs.
    3. L&R by Country
    4. L&R by Country
    5. L&R by Category
    6. L&R by Category
    7. L&R recent additions
    8. L&R recent additions
    9. Search
    10. Search
  • Audiovisual library AV library
    1. Home
    2. Audiovisual library
    3. Audiovisual Library
    4. Audiovisual Library
    5. TDM/OGEMID Interviews
    6. TDM/OGEMID Interviews
    7. Conference presentations
    8. Conference presentations
  • OGEMID OGEMID
    1. Home
    2. OGEMID
    3. About OGEMID
    4. About OGEMID
    5. Suggest a topic
    6. Suggest a topic
    7. Guest programme
    8. Guest programme
    9. Seminar programme
    10. Seminar programme
    11. Browse archive
    12. Browse archive
    13. Search
    14. Search
    15. Join
    16. Join
  • News & Events Events
    1. Home
    2. News & Events
    3. News
    4. News
    5. Events
    6. Events
  • Subscribe
Home > Journal

TDM Special Issue on "Judicial Measures and Investment Treaty Law" - Introduction

  • Sign in
  • Table of contents
  • In this category
  • Suggested citation
R. Rana
Rana, Rajat

Article from: TDM 2 (2019), in Editorial

Introduction

This TDM special issue presents and promises to promote a thoughtful discussion regarding the recent rise in investment treaty claims based on judicial conduct. In the past several years, numerous claims have been filed by investors arising from domestic court decisions. These investment claims, however, do not concern allegations of denial of justice or the judiciary's failure to afford the investor due process in the adjudication of its claims. Rather, investors are increasingly claiming that even in the absence of a denial of justice States must be found internationally liable for the decisions of their domestic courts which have caused or have otherwise resulted in the expropriation of their investments. Such investment treaty claims have been alleged with respect to judicial decisions that have resulted in the expropriation of an investor's property rights (i.e., through the vacating of an investor's commercial arbitration award or through the improper seizure and auctioning of its assets), as well as losses accruing to the investor from the court's cancelation of a government contract and/or a government-granted license or patent.

The authors in this issue largely suggest that this recent trend is expected, and that judicial expropriation can occur separate from and independently of denial of justice. In other words, denial of justice is not the only available ground under international law to hold a State liable for the actions of its judiciary. And while this in fact may be correct - why should the judiciary be subject to a different threshold for expropriation than the executive and legislative branches? - there does not seem to be a consistent approach or understanding as to how tribunals should treat claims of judicial expropriation.

This issue suggests various guidelines to help investors, States, and tribunals navigate their way through unchartered territory - the uncertain waters that necessarily flow as tribunals shift away from the traditional denial of justice paradigm. Each of the authors listed below seeks to define what limits should be imposed on tribunals, and several authors propose specific guideposts that should be followed when adjudicating these types of claims. Further, many of the authors discuss and offer guidance on whether claimants should be required to exhaust local remedies for investment claims arising from judicial measures that are not based on a denial of justice. Some of the authors submit that investors should be so required in the context of unfair treatment but not expropriation; others suggest the opposite.

  • Sara Mansour Fallah: Judicial Expropriations - Difficulties in Drawing the Line Between Adjudication and Expropriation
  • James Egerton-Vernon & Ananda V. Burra: Is Denial of Justice the Only Substantive Standard Theory of Liability for Judicial Measures?
  • Berk Demirkol: Exhaustion of Local Remedies and Wrongful Judicial Acts Other Than Denial of Justice
  • Paula Arias & Jessica Sblendorio: Judicial Intervention and Arbitral Awards: Expanding Human Rights Protections to International Arbitration in the Context of Enforcement Proceedings
  • Rachel Frid de Vries: Judicial Conduct and Investment Treaty Claims: Lessons from the Israeli Gas Cases and the Eli Lilly Award
  • Zdeněk Nový: State Responsibility for Breaches of Standards of Investment Protection Committed by Bankruptcy Courts and Trustees

We hope that the articles in this issue are instructive, and that the innovative approaches identified by the authors herein will be considered by all stakeholders in the arbitral community and that they will contribute to maintaining the delicate balance between protecting investors' and States' rights. We also hope that this issue sparks further discussion about what remedies are best suited to rectify a State's international liability incurred by the actions of its domestic courts. In other words, what is the best method: compensation, restitution, and/or should a court only be able to vacate a lower court's decision invalidating laws disrupting property rights? One thing is for sure, we look forward to watching and contributing to how this important area of law develops.

The co-editors of this publication are Nicole Silver (partner at Greenberg Traurig LLP, Washington, D.C.) and Rajat Rana (senior associate at Alston & Bird, New York, NY), who are both experienced in investment treaty law. They would like to thank all the authors in this issue for their contributions.

To read this article you need to be a subscriber

Sign in

Forgot password?

Sign in

Subscribe

Fill in the registration form and answer a few simple questions to receive a quote.

Subscribe now

Why subscribe?

TDM journal

Access to TDM Journal articles (well over 2500 articles in total for Premium account holders)

Legal & regulatory

Access to Legal & Regulatory data (well over 10000 documents)

OGEMID

OGEMID membership (lively discussion platform bringing together the world's international dispute management community)

Suggested Citation

R. Rana; "TDM Special Issue on "Judicial Measures and Investment Treaty Law" - Introduction"
TDM 2 (2019), www.transnational-dispute-management.com

URL: www.transnational-dispute-management.com/article.asp?key=2634

Call for contributions

TDM Call for Papers: Sanctions and International Arbitration: Impact on Substantive and Procedural Issues

Ali Burney, Rinat Gareev, Kiran Nasir Gore, Dini Sejko, Prof. Joel Slawotsky, May Tai

  • Ali Burney
  • Rinat Gareev
  • Kiran Gore
  • Dr Dini Sejko
  • Prof. Joel Slawotsky
  • May Tai

TDM Call for Papers: National Courts as a Forum for the Resolution of Disputes under Article 26 Energy Charter Treaty

John P. Gaffney, Dr. iur Richard Happ,
Lucia Raimanova, Anna-Maria Tamminen, Dr. Catharine Titi

  • John P. Gaffney
  • Dr. iur Ricard Happ
  • Lucia Raimanova
  • Anna-Maria Tamminen
  • Dr. Catharine Titi

TDM Call for Papers: International Investment Arbitration - Environmental Protection and Climate Change Issues

Professor Dr A F M Maniruzzaman, Wendy J. Miles QC, Carla Lewis, Dr Stephen Minas

  • Professor Dr A F M Maniruzzaman
  • Wendy J. Miles QC
  • Carla Lewis
  • Dr Stephen Minas

TDM Call for Papers: The African Continental Free Trade Agreement (AfCFTA)

J. Chaisse, J. Górski, E. Laryea, M.M. Mbengue, and K. Olaoye

  • Prof. Julien Chaisse
  • Dr. Jedrzej Gorski
  • Prof. Emmanuel Laryea
  • Prof. Makane Moïse Mbengue
  • Kehinde Olaoye
  • More
  • Contribute

Advance publication

Transnational Investment State Arbitration: A New Game-Changer for Global Climate Change Goals

20 Mar 2023

I.D. Valones

  • I.D. Valones

Summary of Young-OGEMID Symposium No. 14: "International Arbitration and International Commercial Courts: Competitive or Complementary?" (March 2022)

3 Mar 2023

E.S. Delgado

  • E.S. Delgado

Compliance with the AfCFTA: Is There any Room for Hope?

1 Mar 2023

Y. Kouassi

  • Y. Kouassi
  • More
  • Contribute

Stay connected

Sign up for our email alerts.

  • Issues
  • Advance publication
  • News
  • Linkedin
  • Twitter
  • RSS

Join the debate

Want to join OGEMID, the leading on-line discussion platform for international dispute resolution?

Simply fill in the registration form to start your trial membership.

Download the app

  1. App store
  2. Google play

The Transnational Dispute Management Journal (TDM, ISSN 1875-4120) and OGEMID listserv focus on recent developments in the area of (investment) arbitration and dispute management, regulation, treaties, judicial and arbitral cases, voluntary guidelines, tax and contracting. Read our Terms & Conditions here, and our Privacy Policy here.

About TDM

  • Terms & Conditions
  • Contribute
  • Subscriptions
  • Contact
  • Help

Other publications

  • Oil, Gas & Energy Law Intelligence (OGEL)

© 2004 - 2023. Published by MARIS.

  • Home
  • Contribute
  • Subscriptions
  • Contact
  • Help