Editor's Mail

 

Re Arbitration under a Bilateral Investment Treaty

----- Original Message -----
From: Hernando Otero
To: editor@petroleumworld.com
Sent: Thursday, July 26, 2007 11:49 AM
Subject: Re Arbitration under a Bilateral Investment Treaty

 

Dear Sir:

I hope you are well.

Congratulations on your information service. I frequently consult it.

Regarding your recent posting Arbitration under a Bilateral Investment Treaty note the following:

1) The are likely to be jurisdictional issues for investors bringing an arbitration claim who have channeled their investments through third countries that have BITs with Venezuela once/after the dispute has arisen (dealing with having the proper nationality at the time of the alleged breach of the BIT). As a result, incorporating in a third-country with a BIT with Venezuela is a risk-mitigating solution mostly for investors who have yet to be affected by government actions/omissions.

2) Most of the BITs have other fora for investor-state arbitration aside from arbitration under the ICSID Convention. (ICSID Additional Facility, UNCITRAL rules for example). Although arbitrating pursuant to the ICSID Convention has its advantages, withdrawing from the ICSID Convention does not foreclose these other fora for investors. For example, neither Mexico nor Canada have acceded to the ICSID Convention, yet various NAFTA Chapter 11 arbitrations have taken place pursuant to the ICSID Additional Facility or under UNCITRAL rules. As a result BIT protections for investors would still remain in force and arbitrable. Moreover, even a potential Denunciation of the ICSID Convention by Venezuela would allow investors who have already been affected by government measures to bring arbitral claims for an interim period.

Best wishes for continued success with your publication,

Hernando

http://www.linkedin.com/in/hernandootero

Hernando Otero
International Law Associate
Appleton & Associates International Lawyers
816 Connecticut Ave., 12th Fl.
Washington DC 20006
Ph: 202 293 0900 Fax: 202 2930988
On the Web: www.appletonlaw.com
Email: hotero@appletonlaw.com

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