Investment-Treaty Law & Arbitration (Part 2): State Attribution, Sovereign Acts, and Content of Protections under Investment Treaties

This program is the second in a multi-part curriculum on investment-treaty law and arbitration by Stephen Anway, partner at Squire Patton Boggs and the 2014 Client Choice Award winner for arbitration in New York.  Whereas the first program provided a general overview to investment treaty law, the circumstances in which investment treaty protection is triggered, and jurisdictional bases of investment-treaty arbitration, this second program focuses on situations in which acts are attributable to the State under public international law, which State acts are capable of violating investment-treaties, and how investment treaty tribunals have interpreted the substantive protections of investment-treaties. 

With the explosion in the number of investment-treaties in the last two decades (now totaling more than 3,000), an increasing number of foreign investors began bringing treaty claims against host countries at the start of the 21st century.  The arbitral tribunals were thus called upon to write awards in which they ruled for the investor or the country and, in so doing, developed a body of case law regarding which States acts can violate public international law and interpreting these treaty provisions, applying them to common fact patterns.  That body of case law—which consists of more than 400 awards—informs our understanding of which acts are attributable to the State under public international law, which acts undertaken by the State (assuming attribution) are capable of violating investment-treaties, and the content of countries’ obligations under investment-treaties.  In this program, Mr. Anway analyzes these issues and discusses how international tribunals have analyzed them in arbitral awards.  

In this course, Mr. Anway reviews:

• State attribution principles under public international law
• The difference between imperium acts (state governmental acts) in contrast to commercial acts
• The protection against expropriation without compensation
• The full protection and security standard
• The most-favored nation protection
• The national treatment protection
• The “umbrella” clause protection

Learning Objectives:

I.   Grasp which State acts are capable of violating an investment-treaty

II.  Distinguish between the issue of State attribution and the issue of whether an act is an exercise of the State’s imperium or a commercial act

III. Understand the substantive protections given to investors in investment treaties

IV. Recognize how tribunals have interpreted substantive protections of investment-treaties in practice

V.  Understand which State actions are likely to be considered a violation of an investment treaty