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    Prof Yarik Kryvoi

    LLM (Harvard), PhD, MCIArb, Attorney (New York Bar)


Short bio

Professor Yarik Kryvoi is an academic, policy advisor and practitioner based in London specialising on international and comparative law, with a particular focus on dispute resolution and foreign investment law.

Professor Kryvoi has published extensively, practised and managed large-scale projects on international dispute resolution, international economic law, investment law as well as law and policy in the United Kingdom, United States, the former Soviet Union, the Middle East and Asia.

He is also a respected advisor to governments internationally on legal reforms and public sector excellence. His areas of expertise include promoting the rule of law, commercial and investor-State dispute resolution, courts and other judicial authorities, economic crimes, and the regulation of foreign direct investments.

Consultancy

  • UAE Prime Minister’s Office (Dubai, United Arab Emirates)

  • United Nations Office on Drugs and Crime (Vienna, Austria)

  • Ministry of Justice of Kazakhstan (Astana, Kazakhstan)

  • World Trade Organisation (Geneva, Switzerland)

  • The World Bank (Washington, D.C., USA)

  • Economic Court of the Commonwealth of Independent States (Minsk, Belarus)

  • The Emirate of Dubai (Dubai, United Arab Emirates)

  • International Labour Organization (Geneva, Switzerland)

  • Private clients


Positions of responsibility

  • Chartered Institute of Arbitrators (CIArb), Examiner & Tutor

  • International Law Materials (American Society for International Law), Corresponding Editor

  • CIS Arbitration Forum, Founder & Co-Editor

  • ICSID Review - Foreign Investment Law Journal, Journal of International Dispute Settlement, International and Comparative Law Quarterly - occasional referee for article submissions

  • European Parliament, Independent Legal Expert (Commercial Law, Comparative Law, International Law)

  • Listed as arbitrator by leading institutions, such as Hong Kong International Arbitration Centre, Asian International Arbitration Centre, Shenzhen Court of International Arbitration.

Employment

  • British Institute of International and Comparative Law, Director of the Investment Treaty Forum (London, UK)

  • University of West London, Professor of Law (London, UK)

  • Freshfields Bruckhaus Deringer, Associate (London, UK)

  • Morgan, Lewis & Bockius, International Consultant (Washington, DC, USA)

  • US Court of Appeals, District of Columbia Circuit, Extern Law Clerk to Judge Stephen F. Williams (Washington, DC, USA)

  • Harvard Law School, Research Assistant to Professor Reinier Kraakman (Cambridge, MA, USA)

  • Belarusian State University, Lecturer (Minsk, Belarus)

  • International Labour Organisation, Legal Intern (Geneva, Switzerland)

  • Baker & McKenzie, Summer Associate (St Petersburg, Russia)




Areas of expertise

Professor Yarik Kryvoi was qualified and has practised law in common law and civil law jurisdictions as well as on the international level. He has taught at universities in Europe, America and Asia and has widely published issues of international dispute resolution. He is the founder of the CIS Arbitration Forum and serves on editorial boards of several international periodicals.

Professor Kryvoi is listed as an arbitrator and has practised international law and arbitration with Morgan, Lewis & Bockius in Washington, D.C. and Freshfields Bruckhaus Deringer in London advising governments, private investors and international organisations. His experience also includes working for intergovernmental organisations, an international court and a US federal court of appeals.

He was engaged practical, scholarly or policy-making projects in a number of jurisdictions, including the United Kingdom, the United States, Russia, Belarus, Kazakhstan, Uzbekistan, Japan, Sri Lanka and the United Arab Emirates.

Prof Kryvoi regularly advises governments on the issues of the rule of law, investment climate, judiciary reform and regulation of the legal profession.

His main areas of expertise include the following:




International Investment Law and Dispute Resolution (online course)

This course covers the history and the rationale of protection of foreign direct investments, applicable law, the key standards of international investment law and investor-state dispute settlement.

All classes include infographics and engaging conversations with leading London-based practitioners and arbitrators working in the area of international investment law. Read more


Selected ongoing projects

  • Comparative report on admission and operation of foreign arbitral institutions for the Great Britain China Centre of the Foreign, Commonwealth and Development Office
  • Foreign Direct Investments and Corruption for the United Nations Office on Drugs and Crime
  • United Nations Convention against Corruption principles applicable to investor-state disputes for the United Nations Office on Drugs and Crime
  • Annulment in International Investment Law with Baker Botts
  • Sovereign Wealth Funds and International Dispute Resolution with Withers
  • Investment Arbitration of Banking and Finance Sector Disputes with Dechert
  • Costs in Investor-State Dispute Settlement with Allen & Overy
  • New Security Threats and the Future of Economic Globalization with the University of Nagoya, Japan
  • Putting Legal Education into a Practical Context: The Potential of Online Learning at the UCL Knowledge Lab, UCL Institute of Education

Selected recent publications

  • Empirical Study: Corporate Restructuring and Investment Treaty Protections, BIICL/Baker McKenzie (2020) || + Abstract || Download ||

    This first comprehensive empirical study on corporate restructuring and investment treaty protections examines all publicly available decisions of investor-state arbitration and reveals the trends and patterns of arbitral decision-making.

    Facilitating the consistency and correctness of decisions remains an important concern for states including with regards to divergent interpretations relating to jurisdiction and admissibility. The UNCITRAL working group that is currently working on reforming the system of investor-state disputes (ISDS) expressed concerns with respect to the cost and duration of such proceedings and in particular the lack of mechanisms to address frivolous or unmeritorious claims, including limitations on the standing of investors.

    In the context of investor-state disputes, the term "corporate restructuring" refers to decisions to incorporate companies in certain jurisdictions to benefit from more favourable conditions, most commonly related to tax matters but also to investment treaty protections. This study shows when such restructuring is seen as permissible under international investment agreements and when it leads respondent states to successfully object to the jurisdiction of tribunals.

    The study shows that the top five most effective objections of respondent states were based on the interpretation of the relevant treaty provisions and the timing of the restructuring. Other key factors considered by tribunals were the existence of genuine economic activity of the claimant in the host state and the underlying reason for the corporate restructuring.

    In the absence of detailed guidance in relevant international treaties, tribunals have significant freedom in deciding on the permissibility of corporate restructuring. However, certain trends have already crystallised and can subsequently be reflected in reformed international investment agreements or practice of investor-state tribunals. Also, these findings may help inform decisions of investors on how to structure their business activities to benefit from international investment agreements.

  • Empirical Study: Provisional Measures in Investor-State Arbitration, BIICL/White & Case (2019) || + Abstract || Download ||

    This first comprehensive empirical study on provisional measures in investment treaty arbitration examines more than a hundred decisions and orders rendered by ICSID, UNCITRAL and other investor-state tribunals. It offers an insight into how international tribunals treat applications for provisional measures.

    Over the past 20 years, we have seen a dramatic increase in the number of investor-state disputes and in the number of applications for provisional measures. The study builds on a detailed examination of the entire universe of publicly available decisions and orders on provisional measures (114 in total).

    Acknowledging that many such decisions remain unpublished, it aims at providing insights for a better understanding of the evolving jurisprudence based on the published decisions of tribunals. It demonstrates the trends and practices on key issues such as criteria used by tribunals to grant provisional measures and their understanding of such criteria, success rate by applicable arbitration rules and measures requested as well as the cases most frequently relied upon by international tribunals.

    The study analyzes the applicable law in decisions on provisional measures, the parties making provisional measures requests, applicable arbitration rules, the types of provisional measures, the requirements for the granting of provisional measures, as well as the effect of provisional measures.

  • ‘The Path of Investor-State Disputes: from Compensation Commissions to Arbitral Institutions’, ICSID Review - Foreign Investment Law Journal, Volume 33, Issue 3, pp. 743–765 (2018) || + Abstract || Download ||

    Protection of aliens under international law has progressed from them being clanless individuals or outlaws completely at mercy of the local lord, with no entitlement to the peace and protection of the locality in the earliest times to the modern sophisticated investor-State dispute settlement mechanisms.

    Several fundamental changes have occurred since the constitution of the early compensation commissions of the 18th century leading to the modern system of resolution of investor-State disputes. First, a growing number of multinational enterprises operating globally have become major actors on the international public law plain, in areas in the past reserved only for States. Second, international organisations and other nonstate actors have dramatically strengthened their influence with efficient international arbitration institutions dominating the system of investor-State dispute resolution after the end of the Cold War.

    The methods for resolving investor-State disputes have evolved primarily along the lines of creating specialised institutionalised forms. While early commissioners relied on their subjective understanding of justice and fairness, today the expectation is applying agreed set of rules, so that failure to do so may result in annulment of the award.

    The evolution of various methods of international dispute settlement and the emergence of new methods, such as international investment courts, does not necessarily mean that the older forms of dispute resolution will die like the dinosaurs. They will continue to function, albeit with modifications and will inform the future models of international dispute settlement.

  • Comparative analysis of the National Legislation and International Good Practices for Further Development of the Entrepreneurship Code’s Provisions, in Particular Introduction into the Legislation of the Republic of Kazakhstan of Good Practices, World Bank funded project report for the Ministry of Justice of the Republic of Kazakhstan, 229pp (2018) (not public). || + Abstract ||

    As businesses in the Republic of Kazakhstan increasingly engage with the world economy and compete to attract foreign investors, adjusting the regulation of the private sector to align with global best practices has become an important task.

    To facilitate this task, this World Bank supported project draws on practices of leading jurisdictions in the world to reform the provisions of the Entrepreneurship Code, which entered into force in 2016.

    An important element of the proposed reform is to effectively combine elements of Anglo-Saxon and Romano-Germanic systems to reflect the growing complexity of corporate and contractual relationships, growth in foreign trade transactions and new initiatives such as the establishment of the Astana International Financial Centre (“AIFC”).

    The report looks at three areas of law: corporate law, contract law and law dealing with the protection of foreign investments, which are divided into more focused chapters. Each chapter includes an explanatory note, substantive sections, recent reform initiatives as well as policy options and best practices for consideration.

    The national chapters include Kazakhstan, Canada, Germany, Russia, Singapore, the United Kingdom as well as a special section on public international law. This choice of countries reflects the need to take into account approaches taken in common law jurisdictions, civil law jurisdictions as well as mixed jurisdictions. Most of the jurisdictions have long established traditions of having favourable business climates and proven records of attracting foreign direct investment. The legal system of the Russian Federation is the closest to that of the Republic of Kazakhstan and their recent experience of integrating common law concepts is particularly useful. This executive summary gives a short overview of some recommendations made in the report prepared collaboratively by Kazakhstani lawyers and their colleagues from five countries.

  • ‘ICSID Arbitration Reform: Mapping Concerns of Users and How to Address Them’, British Institute of International and Comparative Law (2018) || + Abstract || Download ||

    This paper summarises key practical concerns of some members of the Investment Treaty Forum related to ICSID arbitration, as well as a wider community of experts, how the ICSID reform proposals address these concerns and makes suggestions for further improvement.

    The paper looks at key concerns of ICSID arbitration users such as timely appointment of arbitrators and challenges to it, over-committed arbitrators and their conflicts of interest, access to emergency arbitrators and fast-track arbitration procedure, procedure for summary rejection of claims and amicable settlement of disputes, consolidation of proceedings, allocation of costs and security for costs, timely rendering of awards and consistency of ICSID annulment decisions.

    The paper also includes a comparison between the ICSID Arbitration Rules and other major arbitration rules designed for investment arbitration proceedings: the UNCITRAL Arbitration Rules, the Arbitration Institute of the Stockholm Chamber of Commerce Arbitration Rules (SCC Rules), and the 2017 EU-Canada Comprehensive Economic and Trade Agreement (CETA).

  • ‘Economic Crimes in International Investment Law’, International and Comparative Law Quarterly, Volume 67, Issue 3, pp. 577-605 (2018) || + Abstract || Download ||.

    The protection of foreign investment by treaties often clashes with the State's sovereign right to investigate economic crimes committed by investors. This article examines the different approaches taken by tribunals to questions concerning admissibility and jurisdiction, applicable law, the standard of review, the burden and standard of proof and deference to actions taken by domestic courts and regulators related to economic crimes.

    It concludes that investors should not automatically be deprived of treaty protections and their access to investment arbitration blocked. The arbitration agreement, being autonomous from the main contract (or the relevant treaty), should, as a rule, remain valid even if the conduct of investors is tainted by economic crimes.

    The article calls on investment tribunals to reflect in their awards on the contributory fault of the parties when representatives of States and investors are both complicit in economic crimes. To achieve greater legal certainty and procedural efficiency, a new generation of investment treaties and the practice of investment tribunals should draw on not only applicable domestic law but also existing sources of international law concerning economic crimes or national best practice.

  • Law and Practice of International Arbitration in the CIS Region (co-edited with Kaj Hobér) (Wolters Kluwer, 2017). || + Abstract || Buy ||.

    Law and Practice of International Arbitration in the CIS Region offers the first comprehensive overview of commercial arbitration in the Commonwealth of Independent States (CIS) region. After the collapse of the Soviet Union over a dozen new states emerged with their individual systems of international commercial arbitration.

    Today, the former Soviet republics such as Russia, Ukraine, Kazakhstan, and others generate a significant and growing amount of work for the major Western and CIS regional, international arbitral institutions.

    This book, a country-by-country analysis of regulation and practice of international arbitration in ten CIS jurisdictions, examines notable developments in the use of arbitration mechanisms contained in bilateral and multilateral investment treaties affecting the region.

  • The International Centre for Settlement of Investment Disputes (Kluwer Law International, 2016, third edition). || + Abstract || Buy ||.

    Derived from the renowned multi-volume International Encyclopaedia of Laws, this practical analysis of the structure, competence, and management of International Centre for Settlement of Investment Disputes (ICSID) provides substantial and readily accessible information for lawyers, academics, and policymakers likely to have dealings with its activities and data. No other book gives such a clear, uncomplicated description of the organization's role, its rules and how they are applied, its place in the framework of international law, or its relations with other organizations.

    The monograph proceeds logically from the organization's genesis and historical development to the structure of its membership, its various organs and their mandates, its role in intergovernmental cooperation, and its interaction with decisions taken at the national level. Its competence, its financial management, and the nature and applicability of its data and publications are fully described.

    Systematic in presentation, this valuable time-saving resource offers the quickest, easiest way to acquire a sound understanding of the workings of International Centre for Settlement of Investment Disputes (ICSID) for all interested parties. Students and teachers of international law will find it especially valuable as an essential component of the rapidly growing and changing global legal milieu.

  • ‘Consent Awards in International Arbitration: From Settlement to Enforcement’, Brooklyn Journal of International Law, Volume 40, pp.827-686 (2015). || + Abstract || Download ||.

    Although over a third of all arbitration proceedings result in settlement agreements very little has been written on the legal status of consent awards in international arbitration.

    Drawing on a comparative analysis of procedural rules and practice of major arbitration tribunals, domestic law of common and civil law jurisdictions, this Article presents the first major study of consent awards in international arbitration.

    Consent awards, being effectively settlement agreements recorded by arbitration tribunals as awards, raise a number of difficult legal questions, ranging from the right of arbitrators to refuse recoding the settlement as a consent award to the possible use of consent awards to cover illegal activities.

    Understanding what makes consent awards different from “normal” arbitration awards will help successfully navigate from settlement to enforcement.

  • ‘The Law Applied by International Administrative Tribunals: From Autonomy to Hierarchy’, George Washington International Law Review, Volume 46, pp. 267-301 (2015). || + Abstract || Download ||.

    This Article examines the law applied by the administrative tribunals of international organizations when resolving disputes between international organizations and international civil servants. The analysis suggests that international administrative tribunals primarily rely on employment contracts and internal law of international organisations while only rarely referencing international law.

    This Article argues that international administrative tribunals should specifically define in their relevant statutes the sources of law applicable to international administrative disputes and that they should distinguish such sources from non-legal norms. The Article further notes the modern trend of international administrative tribunals of giving more weight to general principles of law.

    It ultimately argues that these tribunals should establish the supremacy of international law, particularly fundamental principles of international labor law, over the internal law of international organizations. The establishment of such a hierarchy will make international administrative law more legitimate, coherent, and predictable.

To see full bibliography please click here.


Contact


British Institute of International and Comparative Law

Charles Clore House, 17 Russell Square

London WC1B 5JP

Telephone: +44 (0)20 7862 5156

Email: y.kryvoi@biicl.org




Yarik Kryvoi © 2020