BITs meaning

More than three hundred academics, among them Nobel Prize-winning economist Joseph Stiglitz, warned that investor–state dispute settlement (ISDS) enables corporations to contest domestic policies and leave taxpayers facing sizeable judgements, all with inadequate oversight. In a letter dated 12 April 2024, they stated that ISDS lacks many of the basic protections and procedures ordinarily available in a court of law. Affected citizens or domestic entities have no channel to intervene or take part in any meaningful way in ISDS disputes. Nor are there effective routes of appeal and, as a result, no means to correct legal or factual mistakes in arbitral determinations. They also stressed that numerous private lawyers selected as arbitrators simultaneously act for investors in other legal actions brought against governments, underscoring concerns about conflicts and impartiality within the system...

The Czech Republic v Diag Human SE [2025] EWCA Civ 588 What are the practical implications of this case? For those engaged in investment treaty arbitrations, this ruling is noteworthy for the Court of Appeal’s treatment of investment treaty jurisprudence on what it means to qualify as an ‘investor’ under BITs. The Court of Appeal determined that a legal entity which, on its own, did not satisfy the definition of ‘investor’ must be subject to de jure control—rather than merely de facto control—by a qualifying investor (here, an individual) to attain investor status. The judgment also provides helpful guidance on the reach and consequences of Articles 23 and 32 of the United Nations Commission on International Trade Law (UNCITRAL) Rules, addressing Pleas as to the jurisdiction of the tribunal and Waiver of the right to object. More broadly, the decision will interest international arbitration practitioners for its consideration of AA 1996, s 73 (loss of right to object) and AA 1996, 31 (objection to substantive jurisdiction of tribunal)...

Make work pay The party has already moderated several promises and signalled it will seek views from the public and employers before introducing fresh laws. Yet, by folding the whole 26-point plan to 'make work pay' into its manifesto, the new government expects its bills to clear the House of Lords without obstruction. David Hopper, a partner at Lewis Silkin LLP, noted that employers are already preparing for what lies ahead. He argued that, since the reforms largely carry no direct cost to the government, legislating to expand employment rights could provide quick, straightforward wins. Delivering the entire package over the next five years, he added, would amount to a radical shift in employment rights. Labour's programme includes: 'Day one' rights to sick and parental leave Stricter redundancy rules Greater flexibility entitlements for workers New reporting requirements Stronger enforcement An overhaul of laws that hinder trade unions Libby Payne, a partner at Withers LLP, observed that this...

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...

Foreign direct investment (FDI) remains an ever more significant driver within the world economy today, and its importance continues to grow. For multinational groups, and any enterprise hoping to launch operations in another jurisdiction, a key consideration is the legal stability of that location when entering a host market. Careful investors will wish to be confident their capital is safe and shielded from improper intervention by the host state, both now and in future. Shifts in political or economic conditions can prompt state action that may, directly or indirectly, diminish an investment; in the most severe cases, the nationalisation of industries or sectors may lead to expropriation of assets (see, for example, Practice Note: Expropriation—investment treaty arbitration). In those situations, investors might possess rights and remedies arising under the contractual frameworks through which the investment was made, depending on the terms agreed. Often, however, such agreements stipulate that any claims must be pursued in the host state’s courts, or restrict the scope of relief that can be obtained. Accordingly, acknowledging...

Under bilateral investment treaties (BITs) and other investment protection treaties such as multilateral investment treaties (MITs), host states generally commit to provide baseline standards of protection and treatment to foreign investors. These baseline standards can range from an undertaking not to discriminate against foreign investors in favour of domestic companies, through to a commitment not to nationalise or expropriate an investment without the payment of adequate compensation. Among other reasons, appreciating the nature and extent of these safeguards is important for advising on related disputes. This Practice Note summarises the forms of protection typically available under BITs and MITs, including: fair and equitable treatment (FET) of investors (sometimes referred to as the FET standard) full protection and security of investments 'national treatment' of investors 'most favoured nation' (MFN) treatment of investors, and protection from expropriation without adequate compensation UNCTAD, the United Nations Conference on Trade and Development, maintains a useful, searchable database of BITs for each of the world’s countries...