Most countries have entered into bilateral and multilateral agreements that offer significant protections against political risk to foreign investors’ property, assets and interests (referred to as “investments”).
These agreements, known as investment treaties, often provide for international arbitration as a mechanism for settling disputes between foreign investors and states.
Investment treaties typically share the following important characteristics:
- They protect a wide range of assets (including shares).
- They grant protections against disproportionate, discriminatory or arbitrary treatment by a state (ie the executive, judicial and legislative powers), its bodies and agencies.
- In some instances, they protect against substantial changes to the ‘rules of the game’ under which an investment was originally made.
- They provide guarantees against illegal expropriation and, in many cases, against measures that have the effect of an illegal expropriation.
- They allow the affected party to sue an offending state directly before an international arbitral tribunal, avoiding having to resort to national courts.
- A breach of the protections contained in an investment treaty generally confers on the affected party the right to secure compensation not only for the losses suffered but also for loss of profits.
- The protections offered by investment treaties are based on public international law. This means the protections are immune from any legislative changes (including constitutional changes) that could take place in the state where the investment was made.
- If the party affected by a breach of the protections under an investment treaty obtains a favourable decision (arbitral award) and requires its enforcement, the process is facilitated by two international treaties that numerous countries have concluded: (i) the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (known as the “New York Convention”), and (ii) the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (known as the “ICSID Convention”).
Our International Arbitration team represents both investors and states in high-value and complex investment treaty disputes, as well as related litigation before the English courts, such as enforcement actions and challenges.
We have conducted investment treaty arbitrations under the main procedural rules contemplated by most investment treaties, including under the ICSID, UNCITRAL, PCA and SCC rules.
We represent and advise both investors and states in disputes around the world. Acting for both sides gives us a rounded perspective that is strategically beneficial to our clients.
Our lawyers also draw upon their experience sitting as arbitrators, and the team is adept at working across jurisdictions with local counsel, experts and third-party funders, managing the process as required.
Stewarts’ expertise also covers dispute prevention advice. This includes helping companies and individuals identify the most suitable Investment Treaties to use when investing in a new country and how to meet the specific requirements of a particular treaty.
Our firm’s representative experience
Our firm’s representative experience includes advising:
- two Central American investors in the shipping sector against one of Latin America’s largest countries in an UNCITRAL investment treaty claim worth US$400m+.
- a UK national in a multimillion US$200m+ ICSID investment treaty claim against a Latin American state arising from the destruction of a significant concern.
- an investor within the oil & gas sector in three ICSID investment treaty arbitrations against a West African state.
- a solar PV investor in a multi-million US$ Energy Charter Treaty claim against a European state.
- an investor in the chemical industry in an investment treaty dispute against a Central European state.
- a major European telecommunications company in relation to an investment treaty arbitration against a state.
- a European investor in its third party involvement in an Energy Charter Treaty claim against a European state.
- two Swiss companies in an annulment proceeding brought by a Latin American state in a US$300m+ ICSID treaty claim involving issues of expropriation related to the energy and petrochemical industries.
- two Eastern European companies in an UNCITRAL investment treaty arbitration brought under a bilateral investment treaty concerning a South American mine against a state.
- a major airline in respect of investment treaty claims against an African state in connection with the imposition of aviation-related fines.
- several European renewable energy investors in relation to potential investment treaty claims against a European state.
- a construction company in its potential ICSID investment treaty claim against a Central Asian state.
- a US claimant in a US$250m ICSID investment treaty claim arising from a dispute in the extractive sector against a Latin American state brought under a bilateral investment treaty.
- British and US investors in respect of potential bilateral investment treaty claims against Mongolia in connection with licences for the mining of natural resources.
- Kuwaiti investors on an ICSID investment treaty arbitration against a Middle Eastern state.
- US individual and corporate investors in a US$100m+ ICSID investment treaty arbitration against the Arab Republic of Egypt concerning investments and activities within the agricultural and commodities sectors.
- a Caribbean state in an ICSID investment treaty arbitration involving a claim brought under a bilateral investment treaty by a developer of a five-star hotel resort.
- a European state in a 1bn+ Euro Energy Charter Treaty claim pursued by multiple European claimants in relation to an alleged investment in the solar energy sector.
- a European state in an investment treaty claim under the Energy Charter Treaty arising from legal reforms in the renewable energy sector.
- a European state in two ICSID investment treaty arbitrations brought by two European banks.
English Court proceedings related to investment treaty arbitration
- the Republic of India before the English courts in defending challenge proceedings brought in connection with an UNCITRAL arbitration award under the India-France bilateral investment treaty.
- a state in an application to set aside an English High Court order to enforce an award in respect of a dispute arising from an intra-EU bilateral investment treaty.
- an Asian government in English court proceedings defending a section 67 challenge to an UNCITRAL tribunal’s dismissal of jurisdiction under a bilateral investment treaty.
Dispute prevention work
- investors in Latin America, including mining companies, on restructuring their businesses under relevant investment treaties.
- a US OTC-listed company on structuring future investments in an Asian state.
- an Australian-listed minerals company on structuring future investments in a European state.
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"Stewarts' dynamic team regularly advises clients in the oil and gas, commodity trading and shipping and automotive industries in arbitrations"The Legal 500
Meet the International Arbitration team
Our team is highly ranked in both leading independent legal directories, Chambers and The Legal 500.
Our lawyers have extensive experience of cases seated in London and other arbitral centres around the world.