Investment Treaty Arbitration in the Americas

Investment treaty arbitration in the Americas continues to grow as a mechanism to resolve cross-border disputes. Disputes involving Latin American countries continue to occupy a significant portion of the caseload at the International Centre for Settlement of Investment Disputes (ICSID). In 2017, 13 per cent of the 53 new investment arbitration cases registered before the institution (whether under the ICSID Convention or the ICSID Additional Facility Rules) included a South American country as a party, while an additional 4 per cent included Spanish-speaking countries from the Caribbean and Central America.1 In the past year, ICSID registered a total of 10 cases involving:

• Argentina (one);
• Peru (two);
• Venezuela (two);
• Chile (one);
• Nicaragua (one);
• Panama (one); and
• Mexico (two).2

Additionally, 7 per cent of the arbitrators, conciliators and ad hoc committee members appointed in cases registered in 2017 were South American nationals (17 total), 5 per cent were from Central America (5 total) and 14 per cent were from North America (40 total).3

This article discusses four legal developments and updates to last year's article that are expected to be important for arbitration practitioners, international investors and others interested in the investor–state dispute settlement system. First, we discuss the current status of the renegotiations of the North American Free Trade Agreement (NAFTA) and the future of investor–state arbitration in any new agreement reached between the NAFTA parties. Second, we analyse several published provisions of Mexico's new free trade agreement with the European Union and how the outcome of these treaty negotiations will affect the practice of investment arbitration, especially with regards to its new proposed 'investment court' dispute settlement model. Third, we examine a US appellate court's decision that enforcement of ICSID awards against sovereigns in the United States must meet the procedural requirements of the Foreign Sovereign Immunities Act (FSIA), meaning that ICSID award creditors can no longer rely on the ex parte summary procedures of New York law. Lastly, we analyse two significant awards from the past year reflecting different jurisprudential approaches towards Venezuela's denunciation of the ICSID Convention.

Renegotiation of NAFTA – the future of NAFTA investor–state arbitration in peril

As we covered in last year's article, US President Donald Trump announced that his administration would enter into renegotiations of NAFTA in order to 'modernise' the trade agreement and advance his 'America First' policy. At that time, officials in his administration, including US Trade Representative Robert Lighthizer, signalled their intent to retain the investor–state dispute settlement (ISDS) mechanism under Chapter 11 of NAFTA, albeit with some modifications.4 Since then, the Trump administration has displayed an increasingly hostile attitude towards ISDS, putting the future of the dispute resolution mechanism into significant question. The shift in the Trump administration's stance on this issue seems to be politically driven, as some members of the Trump administration have stated that they are questioning the wisdom of continuing to include ISDS mechanisms in investment treaties, on the rationale that they want to promote incentives for US companies to invest more within US borders. The irony of this 'nationalistic' policy is that it implicitly recognises that ISDS provides necessary protections and incentives for US companies to invest abroad. Although many US business interests, including the US Chamber of Commerce, have advocated maintaining ISDS provisions as a 'critical safety net' for US companies operating abroad, President Trump reportedly disagreed with this view in a closed-door meeting at the White House with oil and gas industry leaders.5 Ambassador Lighthizer has since made his opposition to ISDS public, stating that he was 'skeptical' of the ISDS system, which he viewed as granting to foreign nationals 'more rights than Americans have in the American court system' and allowing for 'three guys in London to . . . overrule the entire US system'.6

After eight rounds of negotiations, there is little clarity regarding the fate of the main and most contentious chapters of NAFTA. According to experts, only five or six chapters of the 30-plus chapter trade deal have been finalised thus far, including chapters on customs and border facilitation.7 Negotiations have recently centred on the issue of automobile origin rules, a major sticking point for all three parties.8 Meanwhile, upcoming elections in the US and Mexico may affect negotiation incentives and timelines. A mid-May deadline to notify the current Republican-controlled Congress of provisions from the new deal has recently passed, and US congressional midterm elections may return a Congress that further complicates the renegotiation process.9 Mexico will elect a new president on 1 July 2018, with leftist Andrés Manuel López Obrador currently firmly in the lead.10 Mr López Obrador has expressed opposition to free trade and foreign investment in the past, and has stated that he may roll back the privatisation of the oil and gas sector in Mexico, though his rhetoric towards trade and NAFTA in particular has significantly moderated in recent weeks.11 In any event, Mexico's signing of the ICSID Convention in January of this year at least signals the country's increasing commitment to the ISDS system.

NAFTA's investment chapter has yet to be finalised. Ambassador Lighthizer confirmed in testimony before a US House committee that the Trump administration proposed an 'opt-in/opt-out' clause for ISDS in the ongoing renegotiations.12 The 'opt-out' mechanism is currently also being explored by the negotiating parties of the Trans-Pacific Partnership (TPP), with some countries, such as Peru, signing diplomatic correspondence with other TPP parties to exclude ISDS as between the corresponding parties.13 Reports suggest that Canada and Mexico are opposed to the idea of a unilateral US opt-out, and it is unlikely that the two countries will agree to allow US investors to bring claims against them without reciprocal benefits in any new NAFTA deal.14 For the time being, both Canada and Mexico continue to express public support for ISDS, with some commentators suggesting that they would enter into a bilateral ISDS agreement should the US insist on removing the provision from the NAFTA.15 Meanwhile, in response to Ambassador Lighthizer's comments, a group of nearly 100 congressional Republicans published a letter to 'reiterate [their] strong support for the continuation' of NAFTA's ISDS provision, describing it as an 'essential enforcement mechanism for investor protections'.16 As NAFTA negotiations progress, it remains to be seen whether NAFTA investment arbitration as practiced will live on or become a remnant of legal history.

Treaty negotiations with the European Union – towards an investment court model?

Mexico's treaty negotiations with the European Union may provide a glimpse of the future of investment arbitration in the Americas and across the world, or at least in trade agreements involving the European continent. In late April of this year, Mexico and the European Union announced that they had reached agreement in principle on a new comprehensive free trade agreement.17 The parties recently released the provisional text of the new agreement, which includes dedicated chapters on investment protection and on investment dispute resolution.

The new EU–Mexico agreement features an investment court system comprised of a standing, two-tiered tribunal mechanism to adjudicate investment disputes. The European Union has championed this investment court model in recent investment treaties, including in the EU–Canada Comprehensive Economic and Trade Agreement (CETA),18 as an alternative to the existing ad hoc party-appointed tribunal model that is the current norm in investment arbitration. The proposed EU–Mexico text envisages a first-instance tribunal of nine members appointed to serve five-year terms.19 The first-instance tribunal would hear cases in divisions of three members – a Mexican national, an EU national and a national of a third country.20

A permanent appeal tribunal composed of six members serving five-year terms would hear appeals of awards issued by the first-instance tribunal.21 Appeals would be heard in divisions of three, with the same nationality requirements as the first-instance divisions.22 Disclosure rules in the new agreement require that all disputing parties benefiting from third-party funding disclose the identity of the funder upon submission to arbitration or as soon as the financing agreement is concluded.23

The new EU–Mexico text also features noteworthy provisions for arbitration practitioners on the content and scope of investment protections. As we covered in last year's update, the question of whether dual nationals have standing to bring investment treaty claims against a state of their own nationality has attracted significant interest from the arbitral community, jolted by the García v Venezuela tribunal's holding that the Spain–Venezuela bilateral investment treaty (BIT) does not exclude claims by dual nationals and that principles of general international law cannot be implied into a treaty's text absent express provision by the treaty parties. As with the CETA,24 the new EU–Mexico text resolves this dispute by providing for a 'dominant and effective nationality' test in its definition of protected investors, confirming that dual nationals may bring claims against countries of their own nationality, but adding that the investors must have the dominant and effective nationality of the other state.25

The new text also clarifies a long-standing debate over the scope of most favoured nation (MFN) clauses, specifying that the clause cannot be used to import dispute settlement provisions or substantive protections from other investment treaties.26 The addition of the prohibition for using MFN clauses to import substantive protections from other treaties is a departure from the current mainstream view on this issue.

The new fair and equitable treatment (FET) provisions continue the trend in modern investment treaties in articulating clearer language to delimit the substantive scope of the famously ambiguous standard. In particular, article 15(2) of the provisional text specifies four principal scenarios that establish an FET breach:

• denial of justice;
• fundamental breach of due process;
• manifest arbitrariness, including targeted discrimination; and
• harassment, coercion, or abuse of power.27

A lengthy footnote added for 'greater certainty' attempts to further clarify these four scenarios by listing various factors that a tribunal should and should not consider, though whether the added verbiage will lead to more consistent applications of the FET standard remains to be seen.28

Perhaps drafted in response to a perception among some commentators that arbitral tribunals have adopted overly expansive interpretations of the FET standard over time, the new EU–Mexico text establishes a monitoring mechanism to 'review' the content of the FET obligation. The draft text currently contemplates that a specialised trade committee will have powers to amend the content of the FET obligation.29 This addition appears worrisome in that it seems to allow the state parties to engage in post hoc review of the interpretation by tribunals of the treaty's text. The new text also clarifies that frustration of legitimate expectations does not, in itself, constitute a breach of FET, but is a consideration that 'a tribunal may take into account' when assessing an alleged FET breach.30 Arbitration practitioners will recall the influential definition of the FET standard and the role of legitimate investor expectations advanced by the Tecmed v Mexico tribunal in one of the earliest arbitrations involving Mexico and applied by other tribunals thereafter.31 The proposed treaty language and review mechanism appear to be a response to this line of jurisprudence. At the same time, this would seem to support the argument made by several delegations at the 34th Session of the UNCITRAL Working Group on ISDS reform last year that drafting techniques can be used to allay perceived problems with ISDS.32

The text of the EU–Mexico agreement will only be finalised upon signature by both treaty parties. Nevertheless, the published provisions on investment protection in this agreement, along with those in the CETA (which is currently awaiting ratification by all EU member states), could well have a ripple effect on investment treaty negotiations across the Americas.

Mobil v Venezuela – enforcement of ICSID awards in the US requires compliance with the Foreign Sovereign Immunities Act

The United States is perhaps the most sought-after jurisdiction to enforce ICSID awards. As an ICSID contracting state with a federal constitution, the United States provides for ICSID awards to be enforced in federal court.33 However, laws of individual US states govern execution proceedings and, until recently, could also provide specific mechanisms for enforcement of ICSID awards. For example, a line of decisions from the federal district court for the Southern District of New York allowed for application of an ex parte summary procedure under New York state law to enforce ICSID awards. A claimant could thus reduce its ICSID award to a federal judgment in New York without notifying or involving the foreign sovereign. This changed in July 2017, when the US Court of Appeals for the Second Circuit overruled these decisions and held that federal law – the Foreign Sovereign Immunities Act (FSIA) – must be followed when enforcing ICSID awards.34

Before July 2017, the Southern District of New York had allowed claimants to enforce ICSID awards without giving notice to the foreign sovereign and without complying with the other provisions of the FSIA, all pursuant to article 54 of the New York Civil Practice Law and Rules (CPLR Article 54) in conjunction with the ICSID enabling statute's instruction to enforce an ICSID award 'as if the award were a final judgment of a court of general jurisdiction of one of the several states'.35 Given the availability of this mechanism and the relative ease of finding assets in New York, many claimants enforced their ICSID awards in the Southern District of New York. The first such case was LETCO v Liberia, in which LETCO obtained a judgment and writs of execution on its ICSID award through an ex parte petition. Liberia moved to vacate the judgment and lift the writs of execution, but the court denied Liberia's motion. The court held that Liberia had waived sovereign immunity by virtue of its status as a signatory to the ICSID Convention, but did not address the ex parte aspect of the enforcement proceeding.36 On Liberia's appeal, the Second Circuit affirmed without issuing an opinion.37 In several subsequent cases, the Southern District of New York allowed the same ex parte summary procedure and entered judgments on ICSID awards.38

In Mobil Cerro Negro v Venezuela, Mobil obtained an ICSID award against Venezuela and sought to enforce it the next day in the Southern District of New York using the ex parte summary procedure under CPLR Article 54.39 Mobil filed its authenticated ICSID award with a seven-page brief, presented oral argument to a judge and received a judgment on the award for $1.6 billion – all on the same day and without notifying or involving Venezuela. After the court entered judgment on the award, Mobil notified Venezuela's legal counsel by email. Venezuela promptly moved to vacate the judgment for lack of jurisdiction. After briefing from the parties, the court denied Venezuela's motion and issued a thorough 50-page opinion explaining why.40

In short, the district court held that since the ICSID enabling statute was silent on the mechanism for enforcement of ICSID awards, the 'gap' could be filled by CPLR Article 54. The court held that it had subject matter jurisdiction under the FSIA's exceptions to sovereign immunity, and that full compliance with the FSIA's provisions on personal jurisdiction, process and venue was not required, because the ICSID enabling statute and CPLR Article 54 provided an independent avenue for enforcement. This meant that Mobil did not need to notify or involve Venezuela at the outset of enforcement proceedings, but only within 30 days after entry of the judgment. The court noted that the ex parte summary procedure for enforcement supported the intent of the ICSID Convention contracting states to 'put in place an expedited and automatic recognition procedure'.41

Venezuela appealed and the Second Circuit reversed. The court held that the FSIA provides the sole basis for jurisdiction over actions to enforce ICSID awards against a foreign sovereign, and thus, there is no 'gap' for state law to fill.42 To establish jurisdiction, the court explained, the FSIA requires not only personal jurisdiction (which can be satisfied through the FSIA's waiver and arbitration exceptions to immunity) but also service of process in accordance with the FSIA's provisions. The FSIA also restricts venue for enforcement actions to the federal district court for the District of Columbia, so no enforcement proceeding can be initiated in New York, much less rely on CPLR Article 54. Though the ex parte procedures of CPLR Article 54 were more efficient, the court found 'no significant conflict' between the FSIA's procedural requirements and the ICSID Convention's aims of 'streamlined enforcement' of ICSID awards.43

The Second Circuit explained some practical differences between enforcing ICSID awards under CPLR Article 54 and under the FSIA. Whereas CPLR Article 54 merely required a petition and an authenticated award, for example, the FSIA requires a 'plenary action': filing a complaint based on the award, serving the complaint on the defendant, establishing personal jurisdiction and venue, and allowing the defendant to appear and respond. The claimant may then file a motion for judgment on the pleadings or a motion for summary judgment. This does not allow for substantive challenges; as the Second Circuit recognised, no matter the mechanism, under the ICSID Convention '[courts] may do no more than examine the judgment's authenticity and enforce the obligations imposed by the award'.44 But the FSIA's procedures do give the defendant an opportunity to raise basic procedural challenges that could go to the authenticity of the award, the finality of the award, the propriety of the venue, or possible offsets that would make execution on the full amount improper.

The Second Circuit's decision in Mobil v Venezuela carries several practical implications for practitioners seeking enforcement of ICSID awards in the United States.

First, compliance with the FSIA's procedures slows down enforcement proceedings. As to service of process, the FSIA contemplates service through any special arrangement between the plaintiff and the foreign sovereign, in accordance with an international convention for service of judicial documents, by certified mail (with a translation into the sovereign's official language), or transmittal by diplomatic note.45 This process can take months, and the foreign sovereign has 60 days to respond once served.46 And, once the foreign sovereign responds, the claimant must move the court to enter a judgment on the award, on which the sovereign also will have a right to be heard. In any case, the FSIA makes it impossible to obtain a same-day judgment on an ICSID award as Mobil did.

Second, compliance with the FSIA's procedures will complicate the path to enforcement for award-creditors. Aside from the difficulties of serving a foreign sovereign under the FSIA, the additional time a foreign sovereign has under the FSIA will allow it to raise objections it otherwise might not have raised. Meritorious or not, the claimant will be required to address these objections. These additional steps will make enforcement proceedings under the FSIA more complicated than under CPLR Article 54; in contrast to Mobil's presentation of a petition with a seven-page brief and its ICSID award, under the FSIA, a claimant must file a complaint, serve the foreign sovereign, address any objections, and move the court to enter judgment. And though none of this changes the rule that courts may not engage in any substantive review of an ICSID award, going through the FSIA's procedures will give sovereigns more time to pursue annulment under the ICSID Convention before enforcement proceedings initiate in earnest. Indeed, while Venezuela's Second Circuit appeal was pending, Venezuela obtained a partial annulment of Mobil's ICSID award, reducing it from US$1.6 billion to $188 million.

Third, the FSIA restricts venue for enforcement proceedings to the federal district court for the District of Columbia. Indeed, the Second Circuit's decision in Mobil v Venezuela has led to dismissal of other ICSID enforcement proceedings in the Southern District of New York, requiring them to be refiled in the District of Columbia.47 This will also add more potential steps as execution of the judgment may be required in other jurisdictions around the United States – often in New York – and claimants will thus be required to initiate more execution proceedings beyond the initial enforcement action.

In sum, though ICSID awards are immune from substantive review by US courts, ex parte summary enforcement proceedings are no longer possible, at least in the Second Circuit. The FSIA requires plenary actions, which will be comparatively slower and more complicated, and must be filed in the District of Columbia.

Venezuela update – different jurisprudential approaches in ICSID denunciation cases

Legal practitioners around the world have been attentive to the developments in Venezuela over the past decade. This interest arises, in part, from the multiple expropriations and measures taken by former president Hugo Chávez and that have continued under his successor, Nicolás Maduro. These measures made Venezuela one of the most frequently sued states under the ICSID Convention. With a growing number of cases against it, Venezuela's decision to denounce the ICSID Convention in January 2012 did not catch legal observers by surprise.48

In the past year, two arbitral tribunals have advanced diametrically different approaches for cases initiated after Venezuela's denunciation of the ICSID Convention but before the expiration of the six-month period in article 71 of the ICSID Convention for the denunciation to take effect.

In Blue Bank v Venezuela,49 when addressing the issue of whether denunciation of the ICSID Convention affected Venezuela's consent to arbitration under the applicable BIT, a majority of the tribunal held that article 71 of the ICSID Convention regulates both the ability of a host-state to denounce the treaty and the date when the denunciation becomes effective.50 On the other hand, the tribunal held that the purpose of article 72 of the ICSID Convention is 'to preserve from the consequences of denunciation the rights and obligations under the convention arising out of consent to the jurisdiction of the centre given by the denouncing state before the notice of denunciation is communicated to the depositary'.51

The Blue Bank majority concluded that article 71 should be interpreted following article 31 of the Vienna Convention on the Law of Treaties, in accordance with its ordinary meaning, in light of its object and purpose, and in order to ensure its interpretive technique.52 Based on the plain language of article 71, the tribunal concluded that the six months must elapse following receipt of a written notice of denunciation before the denunciation becomes effective.53

In assessing whether there was an extant agreement to arbitrate, the tribunal focused on whether Venezuela had made an offer to arbitrate and whether the claimant had accepted that invitation. The tribunal found that Venezuela indeed had offered to arbitrate investment disputes by virtue of the dispute settlement clause contained in article 8 of the Venezuela–Barbados BIT, and that treaty was still in force.54 The tribunal also held that the claimant had accepted Venezuela's offer to arbitrate when it expressed its consent. On this last point, the tribunal concluded that the claimant expressed its consent – and thus accepted and perfected Venezuela's offer to arbitrate – the day it filed its request for arbitration.55 Citing Venoklim v Venezuela, the tribunal held that a claimant should not be prejudiced for a delay that may accrue in connection with ICSID's registration of the claim, even if the ICSID Secretariat requested more information in order to register the request.56

Though the president of the tribunal, Christer Söderlund, agreed with his co-arbitrators' conclusion that Venezuela was bound by its consent to arbitrate when the claim was submitted, he issued a separate opinion espousing further analysis of article 72 and its relevance to interpreting Venezuela's consent after its denunciation of the convention.57 Mr Söderlund reasoned that, under the principle of good faith, an investor's right of access to ICSID arbitration should prevail when a host state has promised that access for the duration of the BIT.58 He criticised the 'offer and acceptance' model of analysing arbitration agreements and further suggested that, by operation of article 72, Venezuela's consent survives denunciation as long as the BIT remains in force. In any event, Mr Söderlund agreed that Venezuela's consent did not expire immediately after its notice of denunciation and agreed with the majority's opinion that the request for arbitration was timely filed within the six month notice period provided by article 71 of the ICSID Convention.59

In Fábrica de Vidrios Los Andes v Venezuela,60 the tribunal departed from Blue Bank v Venezuela and its interpretation of articles 71 and 72 of the ICSID Convention. There, the tribunal held that it had no jurisdiction over a claim filed after Venezuela had denounced five days before the six month period had elapsed. The tribunal rejected the claimant's contention that Venezuela's consent to ICSID arbitration remained binding until it expired by the terms of the Netherlands–Venezuela BIT, and held that ICSID arbitration is only available if all conditions for access to arbitration can be satisfied under both legal instruments, ie, the BIT and the ICSID Convention.61

The tribunal first analysed the purposes of article 71 and article 72 of the ICSID Convention. According to the tribunal, there is an important 'division of labour' between the two provisions.62 On the one hand, article 71, which provides that '[a]ny contracting state may denounce this convention by written notice [and] [t]he denunciation shall take effect six months after receipt of such notice,' is addressed to Venezuela's obligations as a contracting state to the ICSID Convention only.63 In other words, article 71's six month denunciation window merely concerns Venezuela's rights and obligations in relation to the World Bank. This includes, for example, Venezuela's duty to contribute financially to ICSID. On the other hand, article 72, which provides that a notice of denunciation 'shall not affect the rights or obligations . . . of that state . . . arising out of consent to the jurisdiction of the centre,' is addressed to Venezuela as a party in an ICSID arbitration.64 Based on this important distinction, the tribunal held that article 72, not article 71, governed the effect of Venezuela's denunciation for purposes of an investor's acceptance of Venezuela's offer to arbitrate for ICSID arbitrations.65

In analysing the effect of Venezuela's denunciation on its position as a party in an ICSID arbitration under article 72, the tribunal held that the plain language of the article establishes that the jurisdiction of ICSID is valid only until ICSID receives the notice of denunciation.66 The tribunal also made a distinction between the concepts of unilateral and perfected consent, the latter being required by article 72 for jurisdiction over a claim.67 Finally, the tribunal held that consent is perfected when an investor accepts the host state's offer to arbitrate a dispute, which can only happen before ICSID receives the notice of denunciation. Accordingly, the tribunal held that because the investor accepted Venezuela's offer after the country denounced the ICSID Convention, the investor failed to perfect Venezuela's consent in time, thereby depriving the tribunal of jurisdiction to consider the claims.68

As tribunals continue to grapple with the impact of Venezuela's denunciation of the ICSID Convention and its termination of a number of its BITs,69 this topic will continue to attract significant attention among arbitration practitioners and foreign investors with investments in South America, especially because Venezuela is not the only state to have denounced the ICSID Convention in recent years.70