2019 Developments in Investment Treaty Arbitration Decisions on the Merits

Subject(s):

Expropriation — Fair and equitable treatment standard — Annulment — Attribution — Arbitration

This chapter highlights notable contributions made by investment treaty tribunals during 2019, in the areas of provisional measures, merits, quantum, other remedies, settlements, annulments, and domestic challenges to awards. Starting with provisional measures, two broad themes can be seen in the few decisions that surfaced in 2019, namely with respect to: (i) the relation between parties and their counsel; and (ii) the powers of investment tribunals to interfere in domestic criminal proceedings. On the merits of investment awards, several developments are worth mentioning. Tribunals have dealt in sometimes novel and interesting ways with matters ranging from adverse inferences to attribution, not to mention the ongoing interpretation of classic investment protections such as the fair and equitable treatment (FET) standard or umbrella clauses. On the whole, 2019 was a typical year in the field of investment arbitrations: tribunals have once again found in favour of and against governments or investors (or neither of them), sometimes clarifying the field's emerging jurisprudence, while, at other times, blurring it further.