Article from: TDM 2 (2019), in Editorial
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.