Investment-Treaty Law & Arbitration (Part 1): Sources of Legal Norms, Triggering Protection, and Jurisdiction of Arbitral Tribunals

Investment-treaty law and arbitration is a rapidly developing area of legal practice—and one of increasing importance.  Once seen as an esoteric area of law having little impact on everyday governmental and business affairs, investment-treaty law and arbitration has emerged in the last decade as one of the central focal points in the international landscape.  In today’s global environment, any lawyer advising clients on cross-border transactions or on matters impacting foreign investment should have, at a minimum, a basic understanding of investment-treaty law and arbitration.

Join Stephen Anway, partner at Squire Patton Boggs and 2014 Client Choice Award winner for arbitration in New York, as he introduces this topic in the first of a multiple-part program on investment-treaty law and arbitration.  The stakes are high.  These treaties, when properly triggered, grant a private party the right to bring an action against a sovereign nation before an international tribunal and give private arbitrators, which the host country does not necessarily choose and who can meet literally anywhere in the world, the power to review the host country’s public policies and effectively annul the acts of the host country’s legislative, executive, and judicial bodies.  

The number of investment treaties has exploded in the last two decades—and now has swelled to more than 3,200.  These investment treaties share a common feature: they grant investments made by an investor of one contracting country in the territory of the other country a number of guarantees, typically including fair and equitable treatment and protection from expropriation without compensation.  The distinctive feature of modern-day bilateral investment treaties (“BITs”) and multilateral investment treaties is found in their dispute resolution provisions, which often provide that when an investor of one contracting country believes the other country (the one “hosting” the investment) has violated the applicable treaty, the investor can bring a claim directly against the “host” country in international arbitration, rather than having to sue the host State in its own national courts.

Mr. Anway begins by describing the two sources of investment-treaty law: customary international law and investment treaties. He provides an overview on investment-treaties—from the rise of the modern-day BITs, to multilateral investment treaties such as NAFTA, CAFTA, and the Energy Charter Treaty, to their forerunners: the friendship, commerce and navigation (“FCN”) treaties. 

In this course, Mr. Anway discusses:

• Sources of investment-treaty law
• Dispute resolution mechanisms in investment-treaties
• International forums in which investment-treaty claims are adjudicated
• The circumstances under which investment-treaty protection is triggered
• When treaty planning/treaty shopping is permissible
• Jurisdictional bases of investment-treaty arbitration

Learning Objectives:

I.   Gain familiarity with the basic aspects of investment treaty law and arbitration

II.  Grasp available international forums in which investment-treaty arbitrations can be commenced

III. Recognize when companies involved in cross-border business can structure their investments to gain investment-treaty protection

IV. Learn the requirements investors must satisfy to property seize the jurisdiction of an investment-treaty tribunal