Investor v State Arbitration

A network of over 3,000 bilateral and multilateral treaties provides individuals and businesses with protections in respect of their investments in foreign countries. These protections typically encompass fair and equitable treatment and a prohibition on the expropriation of the investment by the State. Importantly, each of these treaties specifies the right to have disputes resolved in a neutral forum, by independent adjudicators and under publicised rules.

This means that an individual or business that has no direct contractual relationship with a State can nevertheless issue claims under these treaties where the State has acted in a way that violates one or more of the protections afforded to their investments by the treaties, provided that they (i) are a national of the state that is a party to one of the treaties, and (ii) have an investment in another State that is a party to that same treaty.

CANDEY’s international arbitration lawyers are particularly skilled at identifying treaty-based claims on behalf of its clients. They have represented parties in some of the most high-profile treaty-based disputes in recent years, arising from business conducted across the globe, including Europe, Africa, Asia, the Middle East, and the Caribbean.

A significant amount of our team’s representative work has been on behalf of investors, and our experience encompasses cases covering a broad spectrum of industry sectors. Drawing on that experience, our clients’ cases in Investor-State arbitration are always advanced in the most compelling terms, focusing on those areas the arbitral panel are most interested in.

We pride ourselves on a genuinely partner-led representation of our clients which consistently leads to substantial victories.

CANDEY’s lawyers have represented clients in the following Investor-State cases:

MOL Hungarian Oil and Gas Company Plc v. Republic of Croatia (ICSID Case No. ARB/13/32). The case arose from the privatization of INA Industrija Nafte d.d., a Croatian state-owned energy company (“INA”). MOL’s claims of indirect expropriation were based on the alleged failure by Croatia to improve the gas trading business of INA (in which MOL had invested), as well as alleged delays and irregularities in granting licences and the criminal prosecution of MOL’s chief executive. James Glaysher
Rizzani de Eccher S.p.A., Obrascón Huarte Lain S.A., and Trevi S.p.A. v. State of Kuwait (ICSID Case No. ARB/17/8). The case concerned a project for the construction and maintenance of Jamal Abdul Nasser Street in Kuwait City, an elevated 7km six-lane expressway. The claim comprised assertions that Kuwait consistently obstructed smooth progress of the works, thereby causing the investors significant cost and delay. James Glaysher
UAB E Energija (Lithuania) v. Republic of Latvia, (ICSID Case No. ARB/12/33). The case concerned rights under a 30-year lease agreement concluded between the Investor and the local authority of Rēzekne (Latvia) to review, upgrade and operate a heating supply system. The Investor’s claims arose out of the early termination of the lease agreement by the authorities of Rēzekne, followed by the alleged nationalisation of a heating and hot water supply system in which the Investor had invested. Petar Petkov
Forminster Enterprises Limited (Cyprus) v. Czech Republic, UNCITRAL Case, Final Award, 15 Dec. 2014. An UNCITRAL tribunal considered whether a Cypriot Investor was entitled to unilaterally withdraw its notice of arbitration after deciding not to pursue the arbitration. Petar Petkov
Future Pipe International v. the Arab Republic of Egypt, acting for the claimant, a multinational producer of fiberglass pipes, in an ICSID arbitration under the Egypt-Netherlands BIT. Lionel Nichols
Karkey Karadeniz Elektrik Uretim A.S. v. Islamic Republic of Pakistan. Acting for the state in a dispute arising out of the alleged unlawful detention by the Government of four electricity-generating vessels owned by the claimant, as well as alleged breaches of contractual payment obligations for electricity generated. Paul Kinninmont
GPF GP S.à.r.l v. Republic of Poland – successfully representing the applicant in the first set aside of an investor-state award by an English court, namely a jurisdictional challenge under section 67 of the Arbitration Act 1996. Lionel Nichols

Our team also has extensive experience of matters involving the enforcement of arbitral awards in different jurisdictions against States (acting both for and against States), and related post-award court applications. Notable examples of our most recent work in this area includes:

Reliance Industries & BG Exploration v. The Union of India – acting for the Government of India in successfully resisting eight challenges to a US$3 billion UNCITRAL award in the oil and gas sector.
Union of India v. Reliance Industries & BG Exploration – acting for the Government of India in making five challenges (and resisting a further three challenges) to an UNCITRAL award determined after remission.