Arbitration Team Coffee Break

NEWS

New ICSID Caseload – Statistics published

On 1 February 2024, the International Centre for Settlement of Investment Disputes (ICSID) published a new biannual issue of the ICSID Caseload Statistics. They provide information on the proceedings initiated before ICSID in 2023. As of 31 December 2023, 57 new cases had been registered for the previous year.

The report provides an insight into the cases brought before the ICSID, their geographical distribution, their outcomes, the basis of consent invoked for ICSID jurisdiction in each case and the economic sectors involved.

Data is then compared with data from previous years (since 1972). This gives a picture of the trends and changes in the cases brought before the ICSID.

Honduras prepares to withdraw from ICSID Convention

On 24 February 2024, the Republic of Honduras filed, pursuant to Article 71 of the ICSID Convention, a written notice of denunciation of the ICSID Convention. As established under the latter, such a denunciation will take effect six months after the notice is received by the Centre (ie 25 August 2024).

Honduras’ decision to withdraw from the Convention follows a threat made by the state back in August 2023. At that time, the newly elected government had already condemned ICSID due to alleged procedural mismanagement in the handling of a case involving a US-based investor valued at approximately USD11 billion. The case arose from the Republic of Honduras’ decision to restrict the regulatory and legislative freedoms granted on the island of Roatàn, an area in the north of the country, which had been designed by the state in partnership with foreign investors to be a zone for employment and economic development subject to an autonomous regulatory environment, though still subject to Honduras’ constitution and criminal laws.

However, in the context of implementing other State policies against private investments and strengthening the state’s sovereignty over all its territories, the government decided to restrict Roatàn’s regulatory autonomy.

Since the new government took office, these policies have led to the filing of nine requests for arbitration by private investors against Honduras in less than a year.

Hence, with its denunciation, Honduras has followed the path of other Latin American countries (Bolivia, Ecuador, and Venezuela) in attempting to avoid international liability, becoming the fourth country to denounce the ICSID Convention.

EU Council approves withdrawal from the Energy Charter Treaty

On 7 March 2024, during a meeting of the EU Council, Member States approved a proposal (to be drafted by the European Commission) to withdraw from the Energy Charter Treaty.

This decision mirrors the decision taken internally by some Member States, which have already withdrawn (or declared their intention to withdraw) from the Energy Charter Treaty, as mentioned in the previous issues of the A-Team Newsletter nos. 17, 18 and 19.

The Energy Charter Treaty has lost support of several EU member states due to concerns that its investor protections might hinder effective action on climate change, together with the failure to adopt a modernized version of the Treaty.

EU Court of Justice rules on the long-running Micula case

On 14 March 2024, the Court of Justice of the European Union (CJEU) delivered its judgement in a Case under docket C-516/22 in the matter of the European Commission against the United Kingdom of Great Britain and Northern Ireland. The CJEU found that on 19 February 2020, the UK breached EU law by authorizing the enforcement of an ICSID arbitral award in case Ioan Micula, Viorel Micula and Others v. Romania under docket ARB/05/20.

The UK Supreme Court judgement was given despite the Commission having prohibited the losing party, Romania, from paying the awarded compensation, since the amount which Romania was ordered to pay had been considered state aid incompatible with EU law. The CJEU also specified that, pursuant to Article 86 of the UK Withdrawal Agreement (Brexit), it had jurisdiction (also) over the matter during the four years after the end of the transition period.

The CJEU found the Commission’s claims to be “well founded.” It declared that the UK had misapplied Article 351 of the TFEU by enforcing the ICSID award and ordered the UK to pay the costs of the proceedings.

 

EVENTS

Bilateral Italian-German Arbitration Group will host an event in Berlin titled: “Arbitration in Germany and Italy—Recent Developments”

On Thursday, 23 May 2024, the Bilateral Italian-German Arbitration Group will host an event in Berlin titled: “Arbitration in Germany and Italy—Recent Developments”. The event will feature a panel of experts, including DLA Piper counsel Federica Bocci that will discuss the topic of “Recognition and enforcement of awards in Italy and Germany – a side by side comparison”.

Bocconi University: When international arbitration meets the rule of law – Lessons Learned and Challenges Ahead, 23-24 May 2024, Milan

On 23 and 24 of May 2024, Bocconi University will host the event “When international arbitration meets the rule of law – Lessons Learned and Challenges Ahead”. During the two-days event distinguished practitioners, professors and in-hose counsels will touch upon the cutting-edge issues of arbitration proceedings and rule of law. The event is structured with a series of round tables and keynote speeches.

London International Disputes Week, 3-7 June 2024, London

The London International Disputes Week (LIDW2024) will take place in London from 3 to 7 June 2024. The theme is “Uniting for global challenge and opportunity,” following on from last year’s theme “Adapting to changing world.”

Download the event programme here.

Italian Arbitration Day, 13 June 2024, Rome

We remind you, as indicated in the previous issue of this newsletter, that the Italian Arbitration Day, jointly organized by the Italian Association for Arbitration and the Milan Chamber of Arbitration, will take place in Rome on 13 June 2024 and it will be dedicated to the “Geography of International Arbitration”.

 

FROM THE BOOKSHELF

Giappichelli has published the volume Nozioni di diritto internazionale privato e processuale (Notions of private and procedural international law) by Paolo Bertoli, full Professor of Private International Law at Insubria University.

The book looks into themes of private and procedural international law and is addressed to students and practitioners in this field.

The book has six chapters:

• Chapter I an introductory analysis of the topic, dealing with the object, function, sources, and methods of private and procedural law.
• Chapter II deals with rules on jurisdiction, analyzing both the provisions of jurisdiction in relation to civil and commercial matters provided for in the Brussels I bis Regulation and all the other international instruments regulating the matters outside the scope of application of Brussels I bis Regulation.
• Chapter III deals with the law applicable to contracts, non-contractual obligations, successions, separations and divorces.
• Chapter IV deals with the circulation of foreign judgments.
• Chapter V addresses the issue of judicial cooperation in cross-border service and taking of evidence.
• Chapter VI deals with international commercial arbitration.