International investment arbitration: decisions 2017–2018 on the merits of the dispute

Abstract

In the previous article, the author reviewed the decisions of international investment arbitration 2017–2018 on the jurisdiction and admissibility of claims. This article reviews the decisions of these arbitrations for the same period on the merits of the disputes. A special place among these decisions is taken by decisions on claims of foreign investors on violation by the host state of the regime (or standard) of fair and equitable treatment. This is quite natural: violation of this standard is the most common claim. In 2017–2018 in particular, many lawsuits in which such claims were made were related to the generation of electricity from renewable sources, mainly from solar energy. These claims were based on the 1994 Energy Charter Treaty. The article examines, in particular, cases of claims in which investors demanded compensation for damage caused by changes in the legislation of the host countries. The question before the arbitrators was: how strongly does the standard of fair and equitable treatment protect against legislative changes? The article also considers such aspects as: violation by the state of the national regime, the most favored nation regime and the standard of full protection and security of foreign investments; direct and indirect expropriation. The solutions in which the question arose about; the power of the arbitral tribunal to review its own preliminary decisions; the impact of environmental aspects on the behavior of the investor and the state; attempts by a party dissatisfied with the arbitration decision to have the decision annulled or overturned either by an ad hoc committee of ICSID or by national state courts. An analysis of the above decisions will reveal some trends in international investment law, which is important in the context of the fact that there cannot be truly uniform practice in investment arbitration due to the lack of a single source of law and a single dispute resolution body. Thus, only a careful analysis of the practice can tell which practice is well established and which is not.