Principles, grounds and conduct of investment arbitration

One of the most serious risks faced by foreign investors is disputes with the host state. Such conflicts may arise both from the state’s breach of obligations under international law or concluded investment agreements, and from unfavourable changes in domestic legislation that worsen the investor’s situation.

Investing capital abroad therefore requires not only an appropriate business strategy, but also an understanding of investment protection mechanisms. One way to enhance investor security when resolving such disputes is investment arbitration.

What is investment arbitration?

Investment arbitration is a mechanism designed to prevent an unequal position between a foreign investor and the state in whose market the investment is made. Its key advantage is the internationalisation of the dispute – instead of the conflict being resolved by the host state’s domestic courts, the case is referred to an independent, international arbitration tribunal. This approach reduces the risk of arbitrariness and potential bias on the part of domestic courts, ensuring greater neutrality and predictability for investors in the enforcement of their rights.

When does an investment dispute arise?

An investment dispute arises when the host state infringes the rights of a foreign investor in a manner that affects their investment.  The most common causes of disputes include discrimination against foreign investors compared to domestic investors, the introduction of restrictions on the transfer of profits and capital, or the imposition of unjustified financial or regulatory burdens on foreign businesses. It is important to note that these violations may result both from active state action (e.g. through the introduction of new restrictions) and from state inaction (e.g. through a failure to provide a foreign investor with an adequate level of investment protection and security).

Basis for claims:

For an investor to be able to resort to investment arbitration, the consent of the host state is required. The most common source of such consent are so-called BITs, i.e. bilateral investment treaties, which contain relevant arbitration clauses and form the basis for the majority of arbitration proceedings. Consent to arbitration may also arise from an investment agreement concluded directly between the state and a foreign investor, provided it contains a separate arbitration clause. It also happens that a state consents to arbitration in multilateral agreements, an example of which is the Energy Charter Treaty (ECT). Importantly, once consent to arbitration has been given, the state cannot unilaterally withdraw it.

The course of arbitration proceedings:

Arbitration proceedings commence with the submission of a written request for arbitration or conciliation to the Secretary-General. An arbitral tribunal is then appointed to hear the case – given that the award is made by a majority vote, the number of arbitrators must be odd. The arbitrators are appointed jointly by both parties to the dispute.

When considering the request, the Tribunal applies the law designated by the parties to the proceedings; in the absence of agreement on this matter, the law of the State party to the dispute and the relevant rules of international law apply. It is important to note that the Tribunal cannot refuse to adjudicate the case on the grounds of insufficient or unclear provisions.

It is worth bearing in mind that the awards of the arbitral tribunal are final – the Convention (ICSID) does not provide for the possibility of appealing against them. Arbitral awards are enforced within the territory of a State in accordance with its law, in the same manner as judgments of national courts.

Summary:

Investment arbitration plays a fundamental role in the system of protecting foreign investors against the risk of arbitrary actions by host states. As the scale of cross-border investment grows, host states may become increasingly concerned about the market position of their domestic enterprises, which creates a risk that they will introduce preferential legislation aimed at protecting domestic enterprises from foreign competition. An efficiently functioning investment arbitration system is essential to redress the imbalance between a foreign investor and a sovereign state in the event of a dispute and to ensure that both parties have equal opportunities in the adjudication proceedings.