Investment treaty arbitration

Withers has a leading specialist practice in international investment law for investments around the world. This encompasses:

  • Representing investors and States as counsel and advocates in international arbitrations between investors and States arising from interference with investors’ treaty rights.

What are investment treaties and how can they be used to protect international investments through international arbitration?

Investment treaties are binding international agreements between Sovereign States which can provide standards of protection and international arbitration rights to qualifying foreign investors against the State in which they have invested.

Qualifying foreign investors have the right to sue States in international arbitration for treatment that is contrary to investment treaty standards. This includes State conduct that is unfair, discriminatory or expropriatory. In many cases, the investor can sue the State in international arbitration before the World Bank (ICSID) arbitration centre.

The international responsibility of a State under an investment treaty is triggered by adverse action taken by governments, legislatures, courts, State agencies and other entities even if the investor has no direct relationship or contract with the government, state agency or entity.

There are over 3,000 investment treaties worldwide.

Having a suitable investment treaty can provide investors with powerful rights to protect their investments via international arbitration. Investment arbitration awards can run into the millions, and in some cases billions, of US Dollars. They can often be enforced around the world under multilateral treaties such as the New York Convention and the ICSID (World Bank) Convention.

 Watch our video on protecting your international investments 

Structuring international investments to benefit from investment treaty protection

  1. Every investment treaty is unique and many international investments are not covered by investment treaties or have inadequate investment protection.
  2. To benefit, the investor and investment must fit within the terms of a suitable investment treaty (in terms of being a qualifying 'investor' with a qualifying 'investment' within the scope of the treaty).
  3. We can advise whether the ownership chain of the investor involves an entity whose country of nationality has a suitable investment treaty with the country of investment.
  4. If the investor is not covered under a suitable investment treaty, we can advise on structuring or re-structuring the ownership chain to obtain coverage and protection.
  5. Obtaining specialist advice on investment protection before a dispute arises can be crucial to ensuring international arbitration and other rights.

Recent work

  • UK individual v Asian State Counsel of the Claimant in an UNCITRAL arbitration involving issues of expropriation and bilateral investment treaties related to a major energy import terminal.
  • Indorama International Finance Limited v Arab Republic of Egypt Counsel of the Claimant in an ICSID arbitration involving issues of expropriation and bilateral investment treaties related to a textile factory.
  • ATA Construction v The Hashemite Kingdom of Jordan Counsel of the Claimant in an ICSID arbitration involving issues of expropriation and bilateral investment treaties related to a dam construction agreement.
  • EVN AG v The Republic of Macedonia Counsel of the Respondent in an ICSID arbitration involving issues of expropriation, the Energy Charter Treaty and bilateral investment treaties related to a concession agreement for electricity distribution.
  • Swisslion v The Republic of Macedonia Counsel of the Respondent in an ICSID arbitration involving issues of expropriation and bilateral investment treaties related to a food factory.
  • GEA Aktiengesellschaft v The State of Ukraine Counsel of the Respondent in an ICSID arbitration involving issues of expropriation and bilateral investment treaties related to an energy and petrochemical manufacturing agreement.

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