Understanding investment treaty arbitration

Please note that we also have subtopics on ICSID arbitration—overview and State immunity and arbitration—overview.

Investment treaty arbitration—an introduction

This Practice Note provides an introductory overview of investor—state arbitration and the key protections offered by bilateral and multilateral investment treaties (BITs and MITs) in respect of investments in foreign states. It sets out an explanation of the kinds of protections afforded to investors under those treaties and how investment disputes are resolved. It gives an outline of common issues in investment treaty arbitration, including who is an investor, what is an investment, jurisdiction, negotiations, interim measures, enforcement and state immunity. It provides an introduction to the International Centre for Settlement of Investment Disputes (ICSID) and to other arbitral bodies which administer proceedings in investment treaty arbitrations.

See Practice Note: Investment treaty arbitration—an introduction.

The meaning of 'investor' and 'investment' in investment treaty arbitration

This Practice Note sets out the definitions of ‘investor’ and ‘investment’ for the purposes of investment treaty arbitration. It considers the complexities of these definitions including those in respect of holding companies, indirect ownership, nationalities and state ownership.

See Practice

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Latest Arbitration News

One arbitration, two courts, multiple injunctions (MSA Global LLC (Oman) v Engineering Projects (India) Ltd)

Arbitration analysis: This dispute is a rare case of two competing court interventions in relation to an arbitration. A non-seat court in Delhi decided to exercise certain supervisory functions by issuing an anti-arbitration injunction. The seat court in Singapore disagreed that the non-seat court had the jurisdiction to do so, and also issued an anti-suit injunction. EPIL (the contractor) sought to set aside a Singapore-seated partial award in the Singapore High Court. The Singapore High Court (as the seat court) dismissed EPIL’s setting aside application, and its attempt to introduce apparent bias of an arbitrator as an additional ground for setting aside. While EPIL brought another challenge application against the same arbitrator in Singapore, it has commenced proceedings in the Delhi Court also to challenge the arbitrator, and to enjoin the counterparty (MSA, the sub-contractor) from continuing with the Arbitration. The Singapore Court first granted an interim anti-suit injunction for the Delhi Proceedings. But the Delhi Proceedings carried on, and led to an interim anti-arbitration injunction by the Delhi Proceedings. The Singapore Court in its judgment granted a permanent anti-suit injunction against EPIL in relation to the Delhi Proceedings, finding also that the Delhi Court had no power to intervene in the Arbitration. Written by Violet Huang, counsel at Colin Seow Chambers.

USA—D.C. Circuit (Court of Appeal) rules on sovereign immunity and arbitrability concerning an ISDS award (Deutsche Telekom v India)

Arbitration analysis: After India terminated a satellite spectrum lease deal, Deutsche Telekom (DT) initiated arbitration under the Germany-India Bilateral Investment Treaty (BIT). Despite India’s contentions that the BIT’s arbitration clause did not extend to the parties’ dispute, the tribunal, along with courts in Switzerland, Germany and Singapore held in favor of DT. The US district court likewise confirmed the award, rejecting India’s claims on sovereign immunity and forum non conveniens, and India’s substantive defenses were forfeited or precluded. On appeal, the D.C. Circuit remanded the case, holding that the district court erred by refusing to consider India’s substantive defenses. The court determined that India’s claim to immunity under the Foreign Sovereign Immunities Act (FSIA) was ‘colorable’ and the legal boundary of challenges to the existence of an arbitration agreement and those concerning its scope were unclear, which is an issue currently pending before the US Supreme Court in a different petition for certiorari. Written by Gizem Alper, Independent International legal and ADR consultant.

High Court of Hong Kong refused to stay court proceedings in favour of arbitration

Arbitration analysis: Despite the clause in the 2014 shareholders’ agreement using broad terms such as ‘arising out of or relating to’ and extending to non-contractual obligations, the court held that the alleged misappropriation of corporate assets did not fall within its scope. The key reason was that Soremi Investments Ltd (SIL) was not a transacting party to the shareholders’ agreement, which governed relations between the shareholders rather than the company’s own affairs. The judgment refines the application of Fiona Trust in Hong Kong: broad words do not always override the contractual and party context. The decision has major drafting implications and provides practical guidance for counsel managing stay applications under section 20(1) of the Arbitration Ordinance. Written by Julien Chaisse, professor & RGC senior research fellow at School of Law, City University of Hong Kong.

Singapore Ministry of Law announces Joint Declaration on dispute resolution co-operation with China

Singapore's Ministry of Law (MinLaw) announced that ten Singaporean and Chinese dispute resolution organisations signed a Joint Declaration on Co-operation in Promoting International Commercial Dispute Resolution. The declaration commits the parties to deepening co-operation in advancing international commercial dispute resolution mechanisms and promotes increased accessibility to dispute resolution options for businesses.