Investor-State Arbitration: Protections And Strategies Under Bilateral Investment Treaties.pdf

Key points include:

- Remedies: Investors have various options to challenge adverse government actions and regulations, ranging from domestic lobbying to international arbitration.
- Investment Treaty Arbitration (ITA): A powerful tool, ITA has seen a substantial increase in cases since 1995, with close to 3,000 BITs in force globally, including NAFTA, ECT, and ASEAN agreements.
- Examples of Claims: Examples include disputes over contract breaches, alleged expropriation of property and intellectual property, and anti-tobacco legislation.
- Strategic Advantages of Treaty Arbitration: These include forum shopping, application of international legal standards, and the potential for additional damages beyond local regulatory proceedings.

Investment and Arbitration Clause

BITs typically define "investment" broadly, including various asset types and examples. Special requirements under ICSID (International Centre for Settlement of Investment Disputes) involve contribution, duration, expectation of return, and assumption of risk. Arbitration clauses offer multiple options, such as the CIRDI (Centre international pour le règlement des différends relatifs aux investissements) or ad hoc tribunals under UNCITRAL (United Nations Commission on International Trade Law) rules.

Investment Arbitration Institutions

- ICSID: Provides institutional arbitration with an established panel of arbitrators, limited annulment procedures, and enhanced global enforcement.
- UNCITRAL: Offers ad hoc arbitration under well-tested rules, with enforceability under the New York Convention if needed. Other institutions include ICC, SCC, LCIA, and special BIT procedures.

Statistics

As of 2009, 317 treaty-based investment arbitration cases have been filed, involving 77 states. Major arbitration forums include ICSID (201 cases), UNCITRAL Rules (83), Stockholm Chamber of Commerce (17), ICC (5), and others.