One of the main developments in recent years in the field of international investment law and policy has been the increased use of investor–State dispute settlement (ISDS) treaty mechanisms allowing foreign investors claiming that their investments have been ill-treated by the host State to initiate arbitration directly against the State.
This is a sustained trend: as of December 31, 2014, ICSID had registered 497 cases under the ICSID Convention and Additional Facility Rules. According to UNCTAD, 42 new known treaty-based ISDS cases were initiated in 2014 by investors, 60 percent of which are directed against developing countries.
This has far-reaching implications for Governments in terms of policy-making, since ISDS mechanisms allow investors to challenge before international arbitral tribunals a broad range of domestic policy measures, from the revocation of licenses or permits, regulation of energy tariffs, legislation relating to sovereign bonds, to changes related to investment incentive schemes. Investors also regularly bring claims for losses related to alleged breaches of contracts, alleged direct or de facto expropriation, or allegedly wrongful criminal prosecution,etc.
Our Expertise on International Investment Law & Policy
PIL Advisory Group has a number of high-level experts and consultants with extensive experience on ISDS mechanisms, available to give expert training and assistance to Governments and other stakeholders on the prevention and strategic management of investor-State claims, in particular in the following areas:
Investor-State Dispute Settlement Mechanisms
- 1965 Washington Convention (ICSID Convention) and Additional Facility
- Bilateral investment treaties (BITs)
- 1994 Energy Charter Treaty (ECT)
- Ad hoc arbitration
Assistance on Legal Issues Involved in ISDS Proceedings
- Jurisdictional issues
- Applicable law
- Treaty law and interpretation issues of IIAs
- Relevant standards of investment protection
- Issues of compensation and remedies
Conduct and Management of ISDS Proceedings
- Strategic advice on the conduct and cost-effective management of ISDS proceedings
- Evaluation and cost/benefit analysis of jurisdictional and procedural options
- Advice on issues of recognition, enforcement and challenge of arbitral awards