CD: Reflecting on the last few years, have you seen a general rise in investor-state disputes?
Senogles: I have noticed a marked increase in recent years in the number of Bilateral Investment Treaty (BIT) cases. This impression is based on a variety of sources: from anecdotal conversations with fellow arbitration practitioners; from news, statistics and new case registrations reported on the ICSID website; from press and online media – both legal and mainstream; from the burgeoning choice of international conferences focusing on investor-state investment treaty cases (whether ICSID or otherwise); and, of course from my practice’s own caseload and enquiries.
Shah: There is no doubt that there has been a steep rise in the number of investor-state disputes that are being referred to arbitration in recent years. In its 2012 report, the International Centre for the Settlement of Investment Disputes (ICSID) observes that it “registered a record 38 cases in 2011, and had registered 19 further cases by June 30, 2012”. This is to be compared to the average of approximately 23-24 cases per year for the period 2000 to 2009. Similarly, other popular arbitration institutions such as the ICC and the LCIA have also reported an increasing number of state parties to arbitrations they are administering. The growth in disputes can be attributed to the growth in foreign investment across the globe, the increasing investment by and into emerging market economies, as well as sudden changes in circumstances and policies that have been necessitated by the recent financial crisis.
Jan-Mar 2013 issue
Charles River Associates
Kirkland & Ellis International LLP
Skadden, Arps, Slate, Meagher & Flom LLP