Procedural Issues in International Investment Arbitration

by Jeffery Commission, Rahim Moloo

Overview

Procedural issues are an area of increasing complexity and concern in modern investment arbitration, and one in which very little guidance currently exists. Indeed, there are a number of important points of departure from the procedural rules commonly adopted in the context of international commercial arbitration.

Procedural Issues in International Investment Arbitration is the first text of its kind to address this gap, examining the most prevalent and controversial procedural issues that arise in investment arbitrations conducted under the ICSID, UNCITRAL, and other arbitral rules. Written by international arbitration experts, the book takes the reader through an investment arbitration in chronological order, identifying each key procedural issue in turn and providing details of the relevant precedents. It charts the process of an arbitration from applicable law and first sessions right through to post-hearing applications and costs. Fully cross-referenced and tabled, Procedural Issues in International Investment Arbitration is an invaluable and practical guide to issues of increasing importance and relevance in ICSID and other arbitrations today.

Product Details

ISBN-13:	9780198729037
Publisher:	Oxford University Press
Publication date:	05/22/2018
Series:	Oxford International Arbitration Series
Pages:	464
Product dimensions:	9.80(w) x 6.90(h) x 1.20(d)

About the Author

Jeffery Commission, Director, Burford Capital and Rahim Moloo, Partner, Gibson, Dunn & Crutcher LLP

Jeffery Commission has particular expertise in international dispute settlement, including commercial arbitration and investment arbitration. He has acted as counsel in arbitration cases under the ICSID, ICSID (AF), UNCITRAL, ICC, LCIA, NAI and ICDR rules and also has extensive experience in advising on public international law and international dispute resolution issues, including treaty drafting and interpretation, the law of state responsibility, international investment law, and designing international arbitration and forum selection agreements.

Rahim Moloo is a partner in the New York office of Gibson, Dunn & Crutcher and is a member of the firm's International Arbitration Practice Group. Rahim has extensive experience in international commercial and investor-state arbitrations and arbitration-related litigation. He is an adjunct professor at Columbia Law School, where he teaches an advanced course on international arbitration, and has been co-chair of the American Branch of the International Law Association's Committee on Disputes Involving States.

Table of Contents

Introduction1. The Law Applicable to Procedural Issues2. The First Procedural Order3. Provisional Measures4. Challenges to Arbitrators, Counsel, and Experts5. The Splitting of Issues for Separate Determination (Bifurcation/Trifurcation)6. Non-disputing Party Participation and Transparency7. Evidentiary Issues8. Hearing Procedures9. Other Procedures10. Statements or Submissions on Costs11. Post-Award ApplicationsAppendices1. Draft Procedural Order No. 12. Decisions on Provisional Measures Requests in ICSID and UNCITRAL Arbitrations3A. Decisions on Challenges to Arbitrators in ICSID Arbitrations3B. Challenges to Arbitrators in UNCITRAL Arbitrations3C. Challenges to Experts and Counsel in ICSID Arbitrations4. Decisions and Orders on Bifurcation Requests in ICSID, ICSID Additional Facility, and UNCITRAL Arbitrations5A. Non- Disputing Party Participation in ICSID Arbitrations5B. Non- Disputing Party Participation in UNCITRAL Arbitrations5C. Non- Disputing State Party Participation in ICSID and UNCITRAL Arbitrations6. Extract of Procedural Order Dealing with Evidentiary Matters7. Redfern Schedule8A. Decisions on Place of Arbitration in ICSID Additional Facility and UNCITRAL Arbitrations8B. Decisions on Manifest Lack of Legal Merit Applications in ICSID and ICSID Additional Facility Arbitrations8C. Site Visits in ICSID and UNCITRAL Arbitrations8D. Tribunal Experts in ICSID and UNCITRAL Arbitrations8E. Applications for Reconsideration in ICSID and UNCITRAL Arbitrations9A. Costs in ICSID and ICSID Additional Facility Arbitrations9B. Costs in ICSID Annulment Proceedings9C. Costs in UNCITRAL Arbitrations10A. Rectification / Correction in ICSID and ICSID Additional Facility Arbitrations10B. Supplementary Decisions in ICSID and ICSID Additional Facility Arbitrations10C. Interpretation in ICSID and ICSID Additional Facility Arbitrations10D. Revision in ICSID Convention Arbitrations10E. Stays of Enforcement in ICSID Annulment Proceedings

Editorial Reviews

"[This] treatise provides a comprehensive resource that fills a gap in academia, resulting in a useful handbook for all arbitration practitioners. Not only may it be consulted for similar procedural issues but, with some creativity, it may also serve as a resource to consult when faced with unforeseen novel procedural challenges in the future. It truly creates value by integrating its vast collection of tribunal decisions, provided in the second half of the book, into nearly every chapter of procedural analysis in the first half of the book. The two parts of the treatise complement one another so that the reader has a comprehensive, go-to handbook. For many offices, this treatise would be a great addition to their library." — Carolyn B. Lam and Matthew N. Drossos , White & Case LLP , Journal of World Investment and Trade

"Books about the substance of foreign investment law - typically delving into treaty text and associated arbitral jurisprudence - are plentiful. Rarely encountered, by contrast, are books about the process of investor-State arbitration, especially the process as established in practice through the hundreds of investor-State arbitrations to have occurred over the last 25 years. Procedural Issues in International Investment Arbitration by Messrs Commission and Moloo (hereinafter Procedural Issues) therefore is a distinctive and, as I suggest below, major contribution to the current literature." — Jack J Coe, Jr, ICSID Review

"According to the book's preface, the authors were attempting to produce a work to which arbitrators, academics and students would be receptive. [...] In this endeavor, the authors have clearly succeeded. The book will be a wonderful resource for law students (and their professors), lawyers (both in-house and external) and arbitrators. It offers a measure of detail about the process that will promote well-informed expectations and more confident decision making. Even those who deal regularly with investor-State disputes will want to own Procedural Issues. The rich source material and analysis that it assembles can only improve any merely anecdotal sense of the process." — Jack J Coe, Jr, ICSID Review

"In sum, this book is another excellent addition to the Oxford International Arbitration Series providing an up-to-date practitioner-orientated guide through the intricacies of investment treaty arbitration procedures. In light of the increasing costs and time involved in investment arbitration proceedings, a deep knowledge and understanding of the procedural nuances is very valuable and can help avoid unnecessary delays and procedural mistakes to the detriment of a party." — Prof. Nikos Lavranos, European Investment Law and Arbitration Review

"Procedural Issues in International Investment Arbitration is a concise handbook, which is informed by the authors' first-hand experience with investment disputes and garnished with extensive footnote references to relevant case law. There is no comparable step-by-step explanation of the investor-State arbitration process on the market, and the book deserves a wide readership. Less experienced counsel or arbitrators will appreciate the book as a primer to investment arbitration, which, for a legal text, makes for an astonishingly good cover-to-cover read. Advanced practitioners will find a competent expert compendium of each step of the arbitral process. The authors have succeeded in writing an advanced book that remains highly accessible." — Dirk Pulkowski, ICC Dispute Resolution Bulletin

"Arbitration practitioners and students will welcome this book, which is a useful tool and invaluable resource on key procedural issues." — Andrea Sesin-Tabarelli, Asian Dispute Review

"The approach of the text, essentially taking readers through the life cycle of an investment arbitration, makes it all the more readable and user-friendly. The authors have written a clear, concise and very helpful treatise that will certainly become a 'go to' guide for those interested in ISDS." - Meg Kinnear, Secretary-General, ICSID (from the Foreword)

"Procedural Issues in International Investment Arbitration is nurtured with broad practical experience, extensive knowledge of cases and the literature, and two very sharp minds [...] The books main advantage, however, is that as a practical guide, it has immense potential to empower inexperienced investors, lawyers and government officials [...] This is writing as a means of empowerment, at a time when it is most needed for the future of investor-state dispute settlement." - Professor Nicolas Angelet, Liedekerke Wolters Waelbroeck Kirkpatrick

"This is an extremely valuable tool for practitioners and academics alike. It covers the most important procedural issues in international investment arbitration in a systematic and comprehensive manner. The extensive tables are a treasure trove of information on a wide range of questions." - Christoph Schreuer, zeiler.partners

"Apart from its obvious benefits for practitioners, the book should, with its impressive array of data, help to inform the public debate on investment arbitration, which so often focuses on matters of procedure (such as transparency). The authors are also to be congratulated for making their discussion of the seemingly dry topic of procedure an entertaining and thought-provoking read" - Antonio R. Parra, Honorary Secretary-General, ICCA

"This is a genuinely useful book on procedural practice in treaty arbitration, for counsel and arbitrators alike. I have had my copy for less than a week, and have already used it for guidance on three occasions. The appended tables of publicly available jurisprudence on specific procedural matters are invaluable." - Lucy Reed, National University of Singapore

From the Publisher