INVESTOR-TREATY ARBITRATION
CD: Could you provide an overview of recent trends and developments in investor-treaty arbitration? How would you describe the volume of such disputes over the last 12 months or so?
Friedman: Over the past 12 months, the volume of investment arbitration cases increased by more than 10 percent. Unsurprisingly, the number of disputes between European Union (EU) Member States declined, likely because of the Court of Justice of the European Union’s (CJEU’s) Achmea v. Slovak Republic decision, which found that treaties signed between EU Member States are contrary to EU law. This led to the termination of almost 40 intra-EU bilateral investment treaties (BITs), leaving limited avenues for EU nationals to start such claims against EU nations. Globally, Colombia faced the largest number of new claims in 2018 followed by Spain, which continues a recent uptick of cases against those two countries. Overall, Argentina, Spain and Venezuela remain the most frequent respondent states based on historic global statistics. Meanwhile, claimants most often are nationals of the US, the Netherlands and the UK. The prevalence of north-to-south disputes is unsurprising, as it reflects the strong flow of foreign investment from north-to-south globally.
Jan-Mar 2020 issue
Kirkland & Ellis LLP
Reed Smith LLP
Skadden, Arps, Slate, Meagher & Flom LLP
Three Crowns
Winston & Strawn LLP