Bilateral Investment Treaty meaning

JSC DTEK Krymenergo v The Russian Federation No. 23-3330 United States District Court for the District of Columbia Crimean investment JSC DTEK Krymenergo, part of the DTEK Energy Group of Ukraine, operated the electricity network in Crimea and held a range of local assets. These comprised: Valuable equipment and moveable property Intangible rights, including licences and contractual entitlements Cash holdings and securities Although Russia annexed Crimea in 2014, Krymenergo retained ownership until 21 January 2015, when Russia reassigned the property to Crimea and took possession of the company’s office premises. In February 2018, Krymenergo initiated arbitration for alleged breaches of the Russia–Ukraine bilateral investment treaty (BIT) before a PCA tribunal chaired by Professor Juan Fernández-Armesto, with J. William Rowley KC appointed by Krymenergo and Professor Vladimir Pavić appointed by Russia. On 1 November 2023, the tribunal unanimously awarded Krymenergo US$207,800,000 in damages, US$9,401,644.76 in lawyers’ fees, and US$1,362,422.88 in administrative costs, together with interest...

A panel of the appellate court ruled that the DC district court correctly refused the African nation’s motions to dismiss the petitions, holding that the Republic of Zimbabwe had waived sovereign immunity under the Foreign Sovereign Immunities Act’s arbitration exception and its implicit waiver exception. The judges observed that the Swiss‑German von Pezold family, together with forestry firms Border Timbers Ltd. and Hangani Development Co (Private) Ltd, satisfied the arbitration exception by demonstrating an arbitration agreement, arbitral awards, and a treaty for enforcing them in the extensive land dispute in what is now the Republic of Zimbabwe. The panel stated that these undisputed elements are fulfilled: the German bilateral agreement and the Swiss bilateral agreement operate as the arbitration agreements; an International Centre for Settlement of Investment Disputes tribunal issued valid arbitration awards; and the ICSID Convention is the treaty governing those awards. As to whether Zimbabwe also relinquished immunity under the implicit waiver exception, the panel declined to reach that...

European Commission v United Kingdom of Great Britain and Northern Ireland Case C-516/22 (ECLI-EU-C-2024-231) What are the practical implications of this case? This judgment underscores the Court of Justice’s careful stance on arbitration as a parallel route for settling disputes touching on EU law. That outlook is deliberately cautious and firmly supervisory. To preserve the primacy of the EU legal system and consistent construction of EU rules across the internal market, the Court will see to it that executing intra‑EU arbitral awards, including those issued under international instruments, such as the ICSID Convention, does not inflict irreversible harm on that framework. Consequently, the Court will take every measure to verify such awards’ conformity with EU law and, where that cannot be achieved, bar their enforcement within the EU to the extent that they conflict with EU law. In light of this, investors from abroad seeking to safeguard their investments may wish to arrange their investments in a manner that enables them to avoid the Court of Justice’s scrutiny,...

This Practice Note provides an introduction to the overall structure of the United Nations Commission on International Trade Law Arbitration Rules (the UNCITRAL Rules). The UNCITRAL Rules occupy a significant role in contemporary arbitration practice. They are crafted for ad hoc international commercial arbitrations—proceedings not administered by an arbitral institution and, typically, not conducted under that institution’s rules. The Rules may likewise be employed in investor–state arbitrations commenced under a treaty, such as a bilateral investment treaty, where the treaty permits arbitration conducted under those rules. Unless the parties stipulate otherwise, the UNCITRAL Rules govern arbitration agreements concluded on or after 15 August 2010, ie the date the revised Rules took effect. The earlier 1976 UNCITRAL Rules continue to apply to all arbitration agreements entered into before that date. Both the 1976 and 2010 UNCITRAL Rules are separate from UNCITRAL’s Model Law on International Commercial Arbitration, adopted in 1985 and revised in 2006, which has been adopted (often with modifications) by more than 50 jurisdictions—see Practice Note: The UNCITRAL...

What is the SCC? The Stockholm Chamber of Commerce Arbitration Institute (SCC) sits within, yet operates autonomously from, the Stockholm Chamber of Commerce. The Institute was founded in 1917. In the 1970s, the United States and the Soviet Union recognised the SCC as a neutral centre for resolving trade disputes. As a result, it remains a preferred venue for East/West cases, that is, disputes involving one or more parties from North America or Europe and one or more parties from Russia, China, or states of the former Commonwealth of Independent States (CIS). Over the past 25 years, filings at the SCC have grown substantially, and the institution has become one of the most important and most frequently used arbitration institutions globally. The SCC’s latest statistics can be found on its website (see also Practice Note: Arbitration statistics and surveys). The SCC manages a wide range of domestic and international commercial arbitration matters and is also a well‑recognised forum for bilateral investment treaty disputes. Around 50% of SCC...

The primary gateway question for any claim under a bilateral investment treaty (BIT), multilateral investment treaty (MIT) or foreign investment laws is whether the claimant truly qualifies as an ‘investor’ and whether its interests in the host state amount to an ‘investment’. If a prospective claimant is not a qualifying investor holding a qualifying investment under the relevant treaty or law, the substantive protections will not engage and there will be no lawful jurisdictional basis for pursuing investor–state arbitration. The definitions of ‘investor’ and ‘investment’ differ across BITs, yet common themes emerge and certain components recur. This Practice Note provides an overview of those themes and the typical issues arising around the definitions of ‘investor’ and ‘investment’. The meaning of investor An investor will typically be an individual citizen of the investor’s home state or a company incorporated in the investor’s home state (domicile). Nonetheless, with individuals holding multiple nationalities and multinational corporations, this question can be complex. Investor—key elements An investor can be a natural...