USA – MISSOURI Trends and Developments Contributed by: Craig S. O’Dear, CSO Law LLC
• Enforcement limited to US courts. • Still strong enforcement under FAA, but not treaty- based. Practical implication: international arbitration is often chosen because judgments may be harder to enforce
(a) direct expropriation is a formal transfer of title or seizure of property; (b) indirect expropriation, or regulatory taking, in- cludes government measures that substantially deprive the investor of economic value; and (c) states may not expropriate an investment un- less: (i) it is for a public purpose; (ii) it is done in a non-discriminatory manner; (iii) it must be done with due process; and (iv) it must include prompt, adequate, and ef- fective compensation. • Fair and equitable treatment (FET): (a) FET is the most frequently invoked standard in • National treatment: (a) foreign investors must be treated no less favourably than similarly situated domestic investors: (b) typical violations include discriminatory regula- tion and unequal licensing treatment. • Most favoured nation (MFN) treatment: (a) These clauses guarantee treatment no worse than investors from any third country. (b) MFN clauses are often used to: (i) import more favourable procedural protec- tions from other treaties; (ii) broaden dispute resolution rights; and (iii) expand substantive protections. In a world of globalised commerce, dispute resolu- tion practitioners (in private practice and in-house) should be aware of the investor–state framework for resolution of disputes. Most countries are signato- ries to the ICSID Convention and extend substantive and procedural protections and access to these rem- edies. Refusing to do so takes a country off the list of potential investment locales of many international investors. This is the price of access to international capital investments. ICSID cases. They protect: (i) legitimate expectations; (ii) transparency; (iii) consistency of regulatory framework; (iv) freedom from arbitrary conduct; (v) due process protections; and (vi) good faith treatment.
abroad than arbitral awards. 3 . Procedures and discovery International • Typically more limited discovery.
• Often blends civil law and common law traditions. • Witness statements frequently submitted in writing. • Document production often guided by International Bar Association guidelines. • Depositions are less common. US domestic • Broader discovery typical. • Depositions common. • More motion practice. • Procedure often resembles federal litigation. Strategic difference: international arbitration generally aims to control cost and scope of discovery. The NFL of international arbitration Investor–state arbitration is a special niche in the field of international commercial arbitration. More than half of these cases are “ICSID” arbitrations, the acronym for the governing forum, the International Center for Settlement of Investment Disputes. These are dis- putes between a private investor and a sovereign state, usually governed by Bilateral Investment Trea- ties (BITs), or Multilateral Investment Treaties, such as NAFTA/USMCA. The cases can also be brought under the procedural frameworks of the Permanent Court of Arbitration (PCA) and the United Nations Commission on International Trade Law (UNCITRAL rules). This practice area is created by sovereign states which, by treaty, extend to private investors who are citizens of other sovereign states’ certain substantive protections. These protections include: • Protection against expropriation (direct and indi- rect):
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