Foreword
Welcome to the international arbitration trends we have identified across our
network for 2018, as a consequence of the legal, political and economic forces that
continue to buffet the ever more complex world in which our clients operate.
A tumultuous 2017 has provided us some insight
into where arbitration's greatest challenges
(and greatest opportunities) lie in the year ahead.
I highlight a few examples:
• With the re-emergence of protectionism in the
West and retrenchment from multilateralism in
the US, the inclusion of investor-state arbitration
in trade and investment treaties remains under
attack from the left and right of the political
spectrum, including the protections afforded by
NAFTA Chapter Eleven.
• Some capital-importing states, such as Venezuela,
Ecuador, Bolivia, South Africa and Indonesia, are
withdrawing from or seeking to renegotiate their
network of bilateral investment treaties (BITs) as a
consequence of multiple investor claims. At the
same time, the rebalancing of economic and
political power from Western states to emerging
economies is changing the type of claims we
see in international arbitration, with a
marked increase, for example, in claims where
both investor and host state are from traditionally
capital-importing states (South-South claims) or
from capital-exporting states (North-North
claims). We are also seeing an increasing focus on
the responsibilities of investors with regard to
social and environmental issues (particularly in
the natural resource sector) and the inclusion in
new BITs of greater regulatory discretion for states
on questions of the environment and tax.
International arbitration:
the top trends in 2018
Nigel Blackaby
Global Head,
International Arbitration Group
T +1 202 777 4519