Investment Treaty Arbitration

Last verified on Monday 28th September 2020

Investment Treaty Arbitration: United Kingdom - England & Wales

Audley Sheppard, Christina Cathey Schuetz and Audley Sheppard QC

Clifford Chance

Overview of investment treaty programme

1. What are the key features of the investment treaties to which this country is a party?

United Kingdom

(a) BITs/MITs

BIT contracting party or MIT Substantive protections Procedural rights
Fair and equitable treatment (FET) Expropriation Protection and security Most-favoured-nation (MFN) Umbrella clause Cooling-off period Local courts Arbitration

Albania (30 August 1995)

Yes

Yes

Yes

Yes

Yes

No

No

Yes

Angola (Signed 4 July 2000; not in force)

Yes

Yes

Yes

Yes

Yes

3 months

No

Yes

Antigua and Barbuda (12 June 1987)1

Yes

Yes

Yes

Yes

Yes

3 months

No

Yes

Argentina (19 February 1993)

Yes

Yes

Yes

Yes

Yes

No

Yes2

Yes3

Armenia (11 July 1996)

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes

Azerbaijan (11 December 1996)

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes

Bahrain (30 October 1991)

Yes

Yes

Yes

Yes

Yes

3 months

No

Yes

Bangladesh (19 June 1980)4

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes

Barbados (7 April 1993)

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes

Belarus (28 December 1994)

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes

Belize (30 April 1982)5

Yes

Yes

Yes

Yes

Yes

3 months

No

Yes

Benin (27 November 1987)

Yes

Yes

Yes

Yes

Yes

90 days

Yes

Yes

Bolivia6 (16 February 1990, terminated as at 14 May 2013, with a 1-year sunset period)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Bosnia and Herzegovina (25 July 2003)

Yes

Yes

Yes

Yes

Yes

3 months

No

Yes

Brazil Signed (19 July 1994; not in force)

Yes

Yes

Yes

Yes

Yes

3 months

No

Yes

Bulgaria (24 June 1997)

Yes

Yes

Yes

Yes

Yes

4 months

No

Yes 7

Burundi (13 September 1990)

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes

Cameroon (7 June 1985)8

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes

Chile (21 April 1997)

Yes

Yes

Yes

Yes

Yes

3 months

Yes9

Yes

China (15 May 1986)

Yes

Yes

Yes

Yes

Yes

6 months

No

Yes10

Colombia (10 October 2014)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Costa Rica (Signed 7 September 1982; not in force)

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes

Cote D’Ivoire (9 October 1997)

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes

Croatia (16 April 1998)

Yes

Yes

Yes

Yes

Yes

3 months

No

Yes

Cuba (11 May 1995)

Yes

Yes

Yes

Yes

Yes

3 months

No

Yes

Czech Republic (26 October 1992)

Yes

Yes

Yes

Yes

Yes

4 months

No

Yes11

Dominica (23 January 1987)12

Yes

Yes

Yes

Yes

Yes

3 months

No

Yes

Ecuador (Entered into force 24 August 1995; terminated as at 18 May 2019, but 15-year sunset period)13

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Egypt (24 February 1976)

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes

El Salvador (1 December 2001)

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes

Estonia (16 December 1994)

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes

Ethiopia (Signed 19 November 2009; not in force)

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes

Gambia (Signed 2 July 2002; not in force)

Yes

Yes

Yes

Yes

Yes

3 months

No

Yes

Georgia (15 February 1995)

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes

Ghana (25 October 1991)

Yes

Yes

Yes

Yes

Yes

3 months

No

Yes

Grenada (25 February 1988)14

Yes

Yes

Yes

Yes

Yes

3 months

No

Yes

Guyana (11 April 1990)15

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes

Haiti (27 March 1995)

Yes

Yes

Yes

Yes

Yes

3 months

No

Yes

Honduras (8 March 1995)16

Yes

Yes

Yes

Yes

Yes

3 months

No

Yes

Hong Kong Special Administrative Region of China (12 April 1999)

Yes

Yes

Yes

Yes

Yes

3 months

No

Yes17

Hungary (28 August 1987)18

Yes

Yes

Yes

Yes

Yes

No

Yes

Expropriation only

India (6 January 1995; terminated as at 22 March 2017, but 15-year sunset period)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Indonesia (24 March 1977)19

Yes

Yes

Yes

Yes

Yes

No

No

Yes

Jamaica20 (14 May 1987)

Yes

Yes

Yes

Yes

No

No

Yes

Yes

Jordan (24 April 1980)21

Yes

Yes

Yes

Yes

Yes

No

No

Yes

Kazakhstan (23 November 1995)22

Yes

Yes

Yes

Yes

Yes

3 months

No

Yes

Kenya (13 September 1999)

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes

Kyrgyzstan (18 June 1998)

Yes

Yes

Yes

Yes

Yes

3 months

No

Yes

Kuwait (signed 27 October 2009; not in force)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Lao People’s Democratic Republic (1 June 1995)

Yes

Yes

Yes

Yes

Yes

3 months

No

Yes

Latvia (15 February 1995)23

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes

Lebanon (16 September 2001)

Yes

Yes

Yes

Yes

No

4 months

No

Yes

Lesotho (18 February 1981)24

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes

Libya (Signed 23 December 2009; not in force)

Yes

Yes

Yes

Yes

Yes

90 days

Yes

Yes

Lithuania (21 September 1993)

Yes

Yes

Yes

Yes

Yes

3 months

No

Yes

Malaysia (21 October 1988)

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes

Malta (4 October 1986)25

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes

Mauritius (13 October 1986)26

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes

Mexico (25 July 2007)

Yes

Yes

Yes

Yes

No

4 months

No

Yes

Moldova (30 July 1998)

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes

Mongolia (4 October 1991)27

Yes

Yes

Yes

Yes

Yes

6 months

No

Yes

Morocco (14 February 2002)

Yes

Yes

Yes

Yes

Yes

No

No

Yes

Mozambique (27 February 2007)

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes

Nepal (2 March 1993)

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes

Nicaragua (21 December 2001)

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes

Nigeria (11 December 1990)28

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes

Oman (21 May 1996)

Yes

Yes

Yes

Yes

Yes

3 months

No

Yes

Pakistan (30 November 1994)29

Yes

Yes

Yes

Yes

Yes

3 months

No

Yes

Panama (7 November 1985)30

Yes

Yes

Yes

Yes

Yes

6 months

No

Yes

Papua New Guinea (22 December 1981)31

Yes

Yes

Yes

Yes

Yes

No

Yes

Yes

Paraguay (23 April 1992)

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes

Peru (21 April 1994)

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes

Philippines (2 January 1981)32

Yes

Yes

Yes

Yes

Yes

No

No

Yes

Poland (14 April 1988)

Yes

Yes

Yes

Yes

Yes

3 months

No

Yes33

Qatar (Signed 27 October 2009; not in force)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Republic of Korea (4 March 1976)34

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes

Republic of the Congo (9 November 1990)

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes

Romania (10 January 1996)35

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes

Russian Federation (3 July 1991)

Yes

Yes

Yes

Yes

Yes

3 months

No

Yes36

Saint Lucia (18 January 1983)

Yes

Yes

Yes

Yes

Yes

3 months

No

Yes

Senegal (9 February 1984)37

Yes

Yes

Yes

Yes

Yes

No

Yes

Yes

Serbia (3 April 2007)

Yes

Yes

Yes

Yes

Yes

3 months

No

Yes

Sierra Leone (20 November 2011)

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes

Singapore (22 July 1975)38

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes

Slovakia (26 October 1992)

Yes

Yes

Yes

Yes

Yes

4 months

No

Yes

Slovenia (12 May 1999)

Yes

Yes

Yes

Yes

Yes

3 months

No

Yes

South Africa (Entered into force 27 May 1998; terminated)

Yes

Yes

Yes

Yes

Yes

3 months

No

Yes

Sri Lanka (18 December 1980)39

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes

Swaziland (5 May 1995)40

Yes

Yes

Yes

Yes

Yes

3 months

No

Yes

Thailand41 (11 August 1979)

Yes

Yes

Yes

Yes

Yes

6 months

No

Yes

Tonga (22 October 1997)

Yes

Yes

Yes

Yes

Yes

3 months

No

Yes

Trinidad and Tobago42 (8 October 1993)

Yes

Yes

Yes

Yes

Yes

6 months

No

Yes

Tunisia43 (4 January 1990)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Turkey (22 October 1996)

Yes

Yes

Yes

Yes

Yes

1 year

Yes

Yes

Turkmenistan (9 February 1995)44

Yes

Yes

Yes

Yes

Yes

4 months

No

Yes

Uganda (24 April 1998)

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes

Ukraine (10 February 1993)

Yes

Yes

Yes

Yes

Yes

3 months

No

Yes

United Arab Emirates (15 December 1993)

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes

United Republic of Tanzania (2 August 1996)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Uruguay (1 August 1997)

Yes

Yes

Yes

Yes

Yes

Reasonable period of time

Yes45

Yes46

Uzbekistan (24 November 1993)47

Yes

Yes

Yes

Yes

Yes

3 months

No

Yes

Vanuatu (Signed 22 December 2003; not in force)

Yes

Yes

Yes

Yes

Yes

3 months

No

Yes

Venezuela (1 August 1996)

Yes

Yes

Yes

Yes

Yes

3 months

No

Yes

Vietnam (1 August 2002)

Yes

Yes

Yes

Yes

Yes

3 months

No

Yes

Yemen (11 November 1983)48

Yes

Yes

Yes

Yes

Yes

No

No

Yes

Zambia (signed 27 November 2009; not in force)

Yes

Yes

Yes

Yes

Yes

6 months

No

Yes

Zimbabwe (Signed 1 March 1995; not in force)

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes

Energy Charter Treaty (ECT, 16 April 1997)49

Yes

Yes

Yes

Yes50

Yes

3 months

Yes

Yes51

* Table compiled on the basis of information provided from publicly available services: UNCTAD Investment Policy Hub (http://investmentpolicyhub.unctad.org/) accessed 8 July 2020; Foreign & Commonwealth Office (FCO), UK Treaties Online (https://treaties.fco.gov.uk/responsive/app/consolidatedSearch/) accessed 8 July 2020; Foreign & Commonwealth Office, Treaty Enquiry Service.

** As at 8 July 2020, the UK has not signed the plurilateral treaty for the termination of intra-EU bilateral investment treaties.

Answer contributed by Audley Sheppard, Christina Cathey Schuetz and Audley Sheppard QC

Qualifying criteria - any unique or distinguishing features?

2. What are the distinguishing features of the definition of “investor” in this country’s investment treaties?

United Kingdom

The UK Model BIT does not use and does not define the term ‘investor’ (unlike many UK BITs in force, see below). However, in Article 1 reference is made to ‘nationals’ (meaning, in respect of the United Kingdom, ‘physical persons deriving their status as United Kingdom nationals from the law in force in the United Kingdom’) and to ‘companies’ (meaning ‘corporations, firms and associations incorporated or constituted under the law in force in any part of the United Kingdom or in any territory to which this Agreement is extended in accordance with the provisions of Article 12’).

Issue Distinguishing features in relation to the definition of ‘investor’
Seat of the investor/place of business

As far as companies are concerned, most of the UK’s BITs and the ECT define ‘investor’ as a company incorporated or constituted under the laws of a contracting party. This includes companies incorporated or constituted in territories to which the BIT is expressly extended (eg, Jersey, Guernsey, the Isle of Man, etc).

Some UK BITs have additional requirements:

• The Senegal BIT requires that the company should be ‘profit-seeking’.

• The Russian Federation BIT requires an investor to be ‘competent, in accordance with the laws of that Contracting Party [ie, the home state] to make investments in the territory of the other Contracting Party’.

• The Chile BIT requires a company to have a ‘registered office, central administration or principal place of business’ in the home state’s territory.

• The Mexico BIT requires a company to be ‘engaged in business operations’ in the territory of the home state.

• The Philippines BIT requires a company to be ‘actually doing business under the laws in force in any part of the territory of the Contracting Party wherein a place of effective management is situated’. Similarly, the Colombia BIT requires a company to have ‘substantial business activities in the territory of the United Kingdom or any territory to which this Agreement is extended’.

The ECT allows host states to deny benefits to a legal entity falling within the scope of the definition of ‘investor’ if citizens or nationals of a third state own or control such entity and if that entity has no substantial business activities in the area of the contracting party in which it is organised.

Nationals

‘Investor’ is typically defined to include persons having the citizenship or nationality of a contracting party.

Generally, the UK’s BITs state that ‘nationals’ are persons deriving their status ‘as United Kingdom nationals from the law in force in the United Kingdom’. A very similar definition is employed in the ECT.

The Jordan BIT expands the definition of ‘national’ to ‘Any British subject not possessing citizenship of the United Kingdom and Colonies or the citizenship of any other Commonwealth country or territory, but who has the right of abode in the United Kingdom and who claims to benefit under this Agreement’ Such individual ‘shall declare his status before making any investment’ (article 1(c)).

Answer contributed by Audley Sheppard, Christina Cathey Schuetz and Audley Sheppard QC

3. What are the distinguishing features of the definition of "investment" in this country’s investment treaties?

United Kingdom

The UK Model BIT defines ‘investment’ at article 1(a) as ‘every kind of asset, owned or controlled directly or indirectly, and in particular, though not exclusively, includes: (i) movable and immovable property and any other property rights such as mortgages, liens or pledges; (ii) shares in and stock and debentures of a company and any other form of participation in a company; (iii) claims to money or to any performance under contract having a financial value; (iv) intellectual property rights, goodwill, technical processes and know-how; (v) business concessions conferred by law or under contract, including concessions to search for, cultivate, extract or exploit natural resources’.

Issue Distinguishing features in relation to the concept of ‘investment’
Eligible assets

All of the UK’s BITs and the ECT refer to a non-exhaustive list of eligible assets, often using the phrase ‘every kind of asset owned or controlled’.

Two BITs limit the scope of eligible assets by reference to economy activity:

• The Colombia BIT refers to ‘every kind of economic asset’.

• The Bulgaria BIT refers to ‘every kind of asset connected with economic activities’.

The ECT allows a host state to deny the advantages of that treaty to an investment if the investment is one of an investor of a third state with or as to which the host state does not maintain a diplomatic relationship or as to which the host state adopts or maintains measures that prohibit transactions with investors of that state and such measures would be violated or circumvented if the benefits of Part III of the ECT were accorded to investors of that state or to their investments.

Indirect control of assets

The definition of ‘investment’ in almost all of the UK’s BITs makes no specific reference to indirectly controlled assets. Only the Colombia BIT explicitly refers to assets controlled indirectly in its enumeration of eligible assets.

By contrast, the ECT, like the UK Model BIT, refers to ‘every kind of asset, owned or controlled directly or indirectly’.

Exclusion of certain assets

Some of the UK’s BITs exclude from the definition of investment certain type of assets such as debts, claims to money, credit transactions (Mexico and Colombia BITs) and loans to a contracting party (Mexico BIT).

Commencement of coverage

Most of the UK’s BITs apply to investments made after the BIT has come into force. However, some of the UK’s BITs protect investments existing as at the date on which the treaty entered into force (for example, China and Bulgaria BITs). Some apply to all investments, whether made before or after the treaty entered into force (India and Hong Kong BITs).

Accordance with local laws

Some of the UK’s BITs explicitly require that investments have been admitted by a host state subject to its law (see, for example, the Philippines and Singapore BITs).

The Thailand BIT extends the benefits of the BIT only to those investments of capital that ‘have been approved in writing by the competent authority of the [host state]’. Furthermore, ‘[w]hen granting approval in respect of any investment the approving Contracting Party shall be free to lay down appropriate conditions’.

Answer contributed by Audley Sheppard, Christina Cathey Schuetz and Audley Sheppard QC

Substantive protections - any unique or distinguishing features?

4. What are the distinguishing features of the fair and equitable treatment standard in this country’s investment treaties?

United Kingdom

Article 2(2) of the UK Model BIT states: ‘investments of nationals or companies of each Contracting Party shall at all times be accorded fair and equitable treatment ...’.

Issue Distinguishing features of the fair and equitable treatment standard
Illustration of the FET standard

The majority of the UK’s BITs and the ECT provide that each contracting party shall accord fair and equitable treatment to investments.

The Colombia BIT specifies that the FET standard includes a prohibition against the ‘denial of justice in criminal, civil, or administrative proceedings in accordance with the principle of due process embodied in the main legal systems in the world’.

The FET clause in the Belize BIT includes a prohibition of ‘unreasonable or discriminatory treatment’.

International law/Customary International Law

The UK’s BITs generally do not link the FET standard with international law or customary international law. There are a small number of exceptions:

  • The UAE BIT refers to treatment ‘in a manner consistent with international law’.
  • The Colombia BIT states that ‘The concept of “fair and equitable treatment” … do[es] not require additional treatment to that required in accordance with international law.’
  • The Mexico BIT states that ‘The Contracting Parties do not intend that the obligations in paragraph 1 above in respect of “fair and equitable treatment” … to require treatment in addition to or beyond that which is required by the customary international law minimum standard of treatment of aliens.’

Answer contributed by Audley Sheppard, Christina Cathey Schuetz and Audley Sheppard QC

5. What are the distinguishing features of the protection against expropriation standard in this country’s investment treaties?

United Kingdom

What are the distinguishing features of the protection against expropriation standard in this country’s investment treaties?

Article 5 of the UK Model BIT states that neither contracting party will nationalise, expropriate or subject to measures having effect equivalent to nationalisation or expropriation the investments of investors of the other party, unless certain conditions are fulfilled. These conditions are that: (i) the expropriation should be for a public purpose related to the internal needs of the contracting party, (ii) the expropriation is not discriminatory, and (iii) the expropriation is accompanied by the payment of prompt, adequate and effective compensation.

The standard of compensation prescribed in the UK Model BIT is:

the genuine value of the investment expropriated immediately before the expropriation or before the impending expropriation became public knowledge, whichever is earlier, shall include interest at a normal commercial rate until the date of payment, shall be made without delay, be effectively realizable and be freely transferable.

The UK Model BIT moreover provides that:

The national or company affected shall have a right, under the law of the Contracting Party making the expropriation, to prompt review, by a judicial or other independent authority of that Party, or his or its case and of the valuation of his or its investment in accordance with the principles set out in this paragraph.

Issue Distinguishing features of the ‘expropriation’ standard
Right to regulate for a public purpose

The condition that the expropriation should be for a public purpose related to the internal needs of the contracting party is common to the UK’s BITs. While also referring to public purposes more generally, a few of the UK’s BIT enumerate more specific conditions in which expropriations may be carried out:

  • The Philippines BIT permits expropriations ‘in the interest of national defence’.
  • The Peru (and similarly the Panama) BIT permits expropriations ‘in a social interest related to the internal needs of [the host State]’.
  • The Nigeria BIT permits expropriations ‘related to the internal policies of [the host State]’.
  • The India BIT permits expropriations ‘related to the internal requirements for regulating economic activity’.

In defining ‘public purpose’, the Addendum to the Costa Rica BIT refers to article 45 of the Costa Rican Constitution.

The ECT permits expropriation ‘in the public interest’.

In accordance with the ‘due process of law’

Very few of the UK’s BITs, but also the ECT, expressly require that an expropriation should be carried out in accordance with due process of the law. For example, the Panama BIT states that an expropriation should be carried out ‘in conformity with the internal law’ and the Antigua and Barbuda BIT states that an expropriation should be carried out ‘in accordance with the provisions of a law applicable to taking of possession and acquisition’.

The United Arab Emirates BIT provides that the expropriation should not be ‘contrary to any contractual obligation undertaken by a contracting party in favour of an investor’.

Protection of minority shareholders

A distinguishing feature of the expropriation clause of most of the UK’s BITs is a further provision that a contracting party that expropriates a company incorporated or constituted in accordance with its own laws and in which nationals of the other contracting party own shares shall ensure that the expropriation provision of the BIT is applied to the extent necessary to guarantee prompt, adequate and effective compensation in respect of such shares.

Compensation

The UK’s BITs and the ECT require prompt and full compensation. Different formulations of what constitutes ‘full’ compensation are employed. For example, ‘the full value of the investment expropriated immediately before the investment became known’ (Bangladesh BIT); ‘the real value of the investment expropriated immediately before the expropriation or impending expropriation became public knowledge’ (China BIT); and ‘the genuine value of the investment expropriated immediately before the expropriation or impending expropriation became public knowledge, whichever is earlier’ (Kyrgyzstan BIT) are some of the formulations one may encounter. The ECT refers to the ‘fair market value’ of the investment immediately before the expropriation became known.

Most BITs and the ECT include interest in the compensation to be made.

Most BITs and the ECT require that the compensation shall be made in a freely convertible currency.

Right to arbitration

Some of the UK’s BITs limit the right to pursue arbitration only to instances where the dispute relates to alleged expropriation (Poland BIT) or only in relation to the amount of compensation due following the breach of particular provisions of the BIT, including the expropriation provision (China and Russian Federation BITs).

Answer contributed by Audley Sheppard, Christina Cathey Schuetz and Audley Sheppard QC

6. What are the distinguishing features of the national treatment/most-favoured-nation treatment standard in this country’s investment treaties?

United Kingdom

Article 3 of the UK Model BIT states:

(1) Neither Contracting Party shall in its territory subject investments or returns of nationals or companies of the other Contracting Party to treatment less favourable than that which it accords to investments or returns of its own nationals or companies or to investments or returns of nationals or companies of any third State.

(2) Neither Contracting Party shall in its territory subject nationals or companies of the other Contracting Party, as regards their management, maintenance, use, enjoyment or disposal of their investments, to treatment less favourable than that which it accords to its own nationals or companies or to nationals or companies of any third State.

(3) For the avoidance of doubt it is confirmed that the treatment provided for in paragraphs (1) and (2) above shall apply to the provisions of Articles 1 to 12 of this Agreement.

Article 7(1) of the UK Model BIT clarifies that:

The provisions of this Agreement relative to the grant of treatment not less favourable than that accorded to the nationals or companies of either Contracting Party or of any third State shall not be construed so as to preclude the adoption or enforcement by a Contracting Party of measures which are necessary to protect national security, public security or public order, nor shall these provisions be construed to oblige one Contracting Party to extend to the nationals or companies of the other the benefit of any treatment, preference or privilege resulting from:

(a) any existing or future customs, economic or monetary union, a common market or a free trade area or similar international agreement to which either of the Contracting Parties is or may become a party, and includes the benefit of any treatment, preference or privilege resulting from obligations arising out of an international agreement or reciprocity arrangement of that customs, economic or monetary union, common market or free trade area; or

(b) any international agreement or arrangement relating wholly or mainly to taxation or any domestic legislation relating wholly or mainly to taxation; or

(c) any requirements resulting from the United Kingdom’s membership of the European Union including measures prohibiting, restricting or limiting the movement of capital to or from any third country.

Issue Distinguishing features of the ‘national treatment’ and/or ‘most favoured nation’ standard
Scope

All of the UK’s BITs and the ECT include national treatment and MFN clauses. The equality of treatment applies to investments, associated activities and returns of investments or nationals of the host state and/or third-party states (for example, the Saint Lucia BIT) or to the management, maintenance, use, enjoyment or disposal of investments (for example, the Saint Lucia BIT and the ECT).

The national treatment and MFN obligations of the ECT include an aspirational commitment (‘Each Contracting Party shall endeavour…’) to accord national treatment and MFN status at the time that investments are made. A supplementary treaty is intended to regulate the conditions for national and MFN treatment in the making of investments.

The ECT moreover provides that where two or more contracting parties have entered into a prior international agreement granting an investor and/or investment rights more favourable than foreseen in Parts III and V of the ECT, the prior international agreement shall prevail (article 16).

Common limitations

Many of the UK’s BITs state that the provision of national treatment and MFN status does not extend to the benefits of membership of a customs union, a monetary union or a free trade area, nor to taxation agreements and/or taxation. Moreover, it is stated in many of the UK’s BITs that the national treatment and MFN obligations shall not be construed as obliging the contracting parties to extend to the nationals or companies of the other contracting party the benefit of any treatment resulting from the requirements of the UK’s membership of the European Union.

Limitation on national treatment and MFN obligations

Some of the UK’s BITs create carve outs to the national treatment and MFN obligations:

  • The Jamaica and Papua New Guinea BITs provide a carve out for ‘special incentives granted by one contracting party only to its nationals in order to stimulate the creation of local industries’.
  • The Panama BIT provides a carve out in respect of ‘domestic legislation in force at the time of signature of the BIT relating to specific economic activities reserved to nationals or companies of one contracting party’.
  • The Morocco BIT includes a further exception for ‘any government aids reserved for its own nationals in the context of national development programmes and activities’.
  • The Vietnam BIT sets forth certain measures exempt from the national treatment obligation in an annex to the BIT.
  • The Korea BIT allows the host State to adopt measures in favour of the host state’s nationals, so long as all foreign nationals and companies (i.e. not only of the home state) are affected equally.

The ECT excludes application of the national treatment and MFN obligations from intellectual property protections, which shall be specified in other international agreements.

Extension to the whole treaty

Most of the UK’s BITs and the ECT are silent as to whether the national treatment and MFN obligations extend to every other obligation under the treaty, including the dispute resolution clause.

Exceptions are to be found, for example, in the Lebanon, Ukraine and Venezuela BITs, which confirm that the national treatment and MFN obligations extend to the remainder of the treaty.

Answer contributed by Audley Sheppard, Christina Cathey Schuetz and Audley Sheppard QC

7. What are the distinguishing features of the obligation to provide protection and security to qualifying investments in this country’s investment treaties?

United Kingdom

Article 2(2) of the UK Model BIT states that investments ‘shall enjoy full protection and security in the territory of the other Contracting Party’.

Issue Distinguishing features of the ‘protection and security’ standard
Scope

The obligation on the host state to accord full protection and security is included in all of the UK’s BITs and the ECT (but expressed there as ‘most constant protection and security’).

The UK’s BITs and the ECT generally do not describe the scope of full protection and security obligation.

The Colombia BIT clarifies that ‘The “full protection and security” standard does not imply, in any case, a better treatment to that accorded to nationals of the Contracting Party in whose territory the Investment has been made’.

International law/ Customary International law

The obligation to provide full protection and security is not generally linked with international law or customary law. There are a small number of exceptions:

  • The UAE BIT refers to treatment ‘in a manner consistent with international law’.
  • The Colombia BIT states that ‘The concept of … ‘full protection and security’ do[es] not require additional treatment to that required in accordance with international law.’
  • The Mexico BIT states that ‘The Contracting Parties do not intend that the obligations in paragraph 1 above in respect of … ‘full protection and security’ to require treatment in addition to or beyond that which is required by the customary international law minimum standard of treatment of aliens.’

Answer contributed by Audley Sheppard, Christina Cathey Schuetz and Audley Sheppard QC

8. What are the distinguishing features of the umbrella clauses contained within this country’s investment treaties?

United Kingdom

Article 2(2) of the UK Model BIT states: ‘Each Contracting Party shall observe any obligation it may have entered into with regard to investments of nationals or companies of the other Contracting Party’.

Issue Distinguishing features of any ‘umbrella clause’
Scope

Most of the UK’s BITs and the ECT contain an umbrella clause. The exceptions are the Jamaica, Lebanon, Mexico and Colombia BITs.

Qualification of the obligation

The umbrella clause in the Philippines BIT applies to any obligation arising from a particular commitment that the host state may have entered into with regard to a specific investment.

The umbrella clause of the Venezuela BIT applies to any obligation that the host state may have entered into with regard to the 'treatment' of investments of Investors.

The ECT allows contracting states to enter a reservation to the effect that they do not give unconditional consent to arbitration in respect of a dispute arising in respect of the umbrella clause.

Answer contributed by Audley Sheppard, Christina Cathey Schuetz and Audley Sheppard QC

9. What are the other most important substantive rights provided to qualifying investors in this country?

United Kingdom

Issue Other substantive protections

Free transfer of payments

Article 6 of the UK Model BIT states:

Each Contracting Party shall in respect of investments guarantee to nationals or companies of the other Contracting Party the unrestricted transfer of their investments and returns. Transfers shall be effected without delay in the convertible currency in which the capital was originally invested or in any other convertible currency agreed by the investor and the Contracting Party concerned. Unless otherwise agreed by the investor transfers shall be made at the rate of exchange applicable on the date of transfer pursuant to the exchange regulations in force.

Article 7(2) of the UK Model BIT also states that:

Where, in exceptional circumstances, payments and capital movements between the Contracting Parties cause or threaten to cause serious difficulties for the operation of monetary policy or exchange rate policy in either Contracting Party, the Contracting Party concerned may take safeguard measures with regard to capital movements between the Contracting Parties for a period not exceeding six months if such measures are strictly necessary. The Contracting Party adopting the safeguard measures shall inform the other Contracting Party forthwith and present, as soon a possible, a time schedule for their removal.

Most of the UK’s BITs and the ECT contain a provision requiring the contracting parties to permit investors freely to transfer investments and investment returns.

Such protection is always subject to the monetary policy of both parties.

It can also be subject to the host state’s right to enact laws limiting free transfers (Thailand, Paraguay, China and Mexico BITs) and also, in exceptional cases, to regulate balance of payments difficulties and, for a limited period, to the exercise equitably and in good faith the powers conferred by a contracting party’s laws (Argentina BIT).

Non-impairment

Article 2(2) of the UK Model BIT states that

Neither Contracting Party shall in any way impair by unreasonable or discriminatory measures the management, maintenance, use, enjoyment or disposal of investments in its territory of nationals or companies of the other Contracting Party

Most of the UK’s BITs and the ECT include an obligation not to impair by unreasonable or discriminatory measures the management, maintenance, use, enjoyment or disposal of investments of nationals or companies of the other contracting party in its territory. Some BITs limit this obligation:

  • The China BIT makes the obligation dependent on the laws of the home State.
  • The Morocco and Colombia BITs mention only ‘discriminatory measures’.
  • The Venezuela BIT mentions only ‘arbitrary and discriminatory measures’.
Armed conflict/civil unrest

Article 4 of the UK Model BIT states that:

(1) Nationals or companies of one Contracting Party whose investments in the territory of the other Contracting Party suffer losses owing to war or other armed conflict, revolution, a state of national emergency, revolt, insurrection or riot in the territory of the latter Contracting Party shall be accorded by the latter Contracting Party treatment, as regards restitution, indemnification, compensation or other settlement, no less favourable that that which the latter Contracting Party accords to its own nationals or companies or to nationals or companies of any third State. Resulting payments shall be freely transferable.

(2) Without prejudice to paragraph (1) of this Article, nationals or companies of one Contracting Party who in any of the situations referred to in that paragraph suffer losses in the territory of the other Contracting Party resulting from: (a) requisitioning of their property by its forces or authorities, or (b) destruction of their property by its forces or authorities, which was not caused in combat action or was not required by the necessity of the situation, shall be accorded restitution or adequate compensation. Resulting payments shall be freely transferable.

Most of the UK’s BITs and the ECT include a provision for the compensation of losses arising out of armed conflict and civil unrest.

Many BITs, such as the Argentina, Ghana and Mexico BITs, make explicit reference to the national treatment and MFN obligation in respect of the compensation of such losses, which compensation may also include restitution, indemnification and other settlement.

Answer contributed by Audley Sheppard, Christina Cathey Schuetz and Audley Sheppard QC

Procedural rights in this country’s investment treaties

10. Are there any relevant issues related to procedural rights in this country’s investment treaties?

United Kingdom

The UK Model BIT includes two alternative dispute resolution provisions at article 8. Alternative 1 is a reference to the International Centre for Settlement of Investment Disputes (ICSID):

(1) Each Contracting Party hereby consents to submit to the International Centre for the Settlement of Investment Disputes (hereinafter referred to as ‘the Centre’) for settlement by conciliation or arbitration under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States opened for signature at Washington DC on 18 March 1965 any legal dispute arising between that Contracting Party and a national or company of the other Contracting Party concerning an investment of the latter in the territory of the former.

(2) A company which is incorporated or constituted under the law in force in the territory of one Contracting Party and in which before such a dispute arises the majority of shares are owned by nationals or companies of the other Contracting Party shall in accordance with Article 25(2)(b) of the Convention be treated for the purposes of the Convention as a company of the other Contracting Party.

(3) If any such dispute should arise and agreement cannot be reached within three months between the parties to this dispute through pursuit of local remedies or otherwise, then, if the national or company affected also consents in writing to submit the dispute to the Centre for settlement by conciliation or arbitration under the Convention, either party may institute proceedings by addressing a request to that effect to the Secretary-General of the Centre as provided in Articles 28 and 36 of the Convention. In the event of disagreement as to whether conciliation or arbitration is the more appropriate procedure the national or company affected shall have the right to choose. The Contracting Party which is a party to the dispute shall not raise as an objection at any stage of the proceedings or enforcement of an award the fact that the national or company which is the other party to the dispute has received in pursuance of an insurance contract an indemnity in respect of some or all of his or its losses.

(4) Neither Contracting Party shall pursue through the diplomatic channel any dispute referred to the Centre unless:

(a) the Secretary-General of the Centre, or a conciliation commission or an arbitral tribunal constituted by it, decides that the dispute is not within the jurisdiction of the Centre; or

(b) the other Contracting Party shall fail to abide by or to comply with any award rendered by an arbitral tribunal.

Alternative 2 is a more general provision regulating the settlement of disputes between an Investor and a host state:

(1) Disputes between a national or company of one Contracting Party and the other Contracting Party concerning an obligation of the latter under this Agreement in relation to an investment of the former which have not been amicably settled shall, after a period of three months from written notification of a claim, be submitted to international arbitration if the national or company concerned so wishes.

(2) Where the dispute is referred to international arbitration, the national or company and the Contracting Party concerned in the dispute may agree to refer the dispute either to:

(a) the International Centre for the Settlement of Investment Disputes (having regard to the provisions, where applicable, of the Convention on the Settlement of Investment Disputes between States and Nationals of other States, opened for signature at Washington DC on 18 March 1965 and the Additional Facility for the Administration of Conciliation, Arbitration and Fact-Finding Proceedings); or

(b) the Court of Arbitration of the International Chamber of Commerce; or

(c) an international arbitrator or ad hoc arbitration tribunal to be appointed by a special agreement or established under the Arbitration Rules of the United Nations Commission on International Trade Law.

If after a period of three months from written notification of the claim there is no agreement to one of the above alternative procedures, the dispute shall at the request in writing of the national or company concerned be submitted to arbitration under the Arbitration Rules of the United Nations Commission on International Trade Law as then in force. The parties to the dispute may agree in writing to modify these Rules.

Most of the UK’s BITs include the latter formulation.

Issue Procedural rights
Fork in the road

Most of the UK’s BITs do not include a fork in the road provision.

However, under the Chile BIT, no recourse may be had to arbitration if the dispute was previously submitted to the host state’s courts.

The ECT provides a choice as between proceedings before the courts or administrative tribunals of the host state; any previously agreed dispute settlement procedure; or arbitration.

Exhaustion of local remedies

Some of the UK’s BITs give recourse to arbitration only when local remedies have been exhausted:

  • Under the Argentina and Uruguay BITs, recourse may be had to arbitration only if the investor has commenced proceedings before the relevant local court(s) or administrative tribunal(s) of the host state and, after 18 months have passed following the commencement of those proceedings, no final decision has been rendered or the investor disputes such final decision (Argentina BIT) or the decision has been manifestly unjust (Uruguay BIT).
  • The Colombia BIT requires the exhaustion of local administrative remedies, if required by the law of the host state, but such administrative law procedure shall in any event last no longer than six months from the date of the investor’s written notification of a dispute. Upon expiry of the six months, it is the investor’s choice whether to proceed before the host state’s courts or arbitration. If the investor notifies its intent to proceed with arbitration, a six-month cooling-off period applies from the date on which the notice of intent to commence arbitration was given.
Failure to conciliate or litigate

Most of the UK’s BITs do not refer to the need to go to conciliation.

Recourse to arbitration is limited under the India BIT to circumstances where the parties do not agree to conciliation or conciliation proceedings fail to resolve the parties’ dispute.

The ECT does not refer to conciliation; litigation is not a prerequisite to arbitration under the ECT.

ICSID or ad-hoc Arbitration

Most of the UK’s BITs provide recourse to ICSID. Some BITs allow investors to pursue arbitral claims through ICSID, the ICC or through an ad-hoc tribunal in accordance with the UNCITRAL rules (for example, Colombia, Ethiopia, Lebanon, Lithuania, Malta, South Africa, Slovenia and Ukraine, BITs); others foresee a choice between ICSID or an ad hoc tribunal under the UNCITRAL rules (Argentina, China, India, Poland and Uruguay BITs); and some foresee arbitration only under the UNCITRAL rules (Bulgaria and Hong Kong BITs).

The Russian Federation BIT provides for arbitration under the SCC Rules or the UNCITRAL rules.

The ECT provides an option as between ICSID, ICSID Additional Facility, UNCITRAL and SCC arbitration. As far as the determination of the nationality of the claimant is concerned in ICSID proceedings, the ECT provides that a legal entity which has the nationality of the host state as at the date on which the investor states its intent to pursue arbitration, but that legal entity was controlled by investors of another contracting party to the ECT before the dispute arose, shall be considered a national of that other contracting party.

Time limits

Two of the UK’s BITs provide a limitation period within which claims must be brought by an investor: the Mexico BIT (three years) and the Colombia BIT (five years); the other BITs and the ECT do not.

Applicable law

Most of the UK’s BITs are silent as to what law would govern the parties’ dispute. Unless otherwise indicated, tribunals typically apply the terms of the treaty and principles of international law. Certain underlying issues (eg the legality of the investment) may be determined by reference to domestic host state law.

Where a dispute has been brought under the ICSID Rules, article 42 of the ICSID Convention provides that the applicable law shall be those rules of law as may be agreed between the parties (which includes the applicable BIT). If no law has been agreed, the Tribunal shall apply the law of the host state (including its rules on the conflict of laws) and such rules of international law as may be applicable.

The Mexico BIT provides that the tribunal shall decide the dispute in accordance with the treaty and the applicable rules and principles of international law.

The ECT provides that any arbitral tribunal ‘shall decide the issues in dispute in accordance with this Treaty and applicable rules and principles of international law’.

Preliminary Issues

The Colombia BIT provides that the tribunal has the power to rule on preliminary questions of competence and admissibility before determining the merits of a dispute.

The UK’s other BITs and the ECT do not address how preliminary issues shall be dealt with.

Answer contributed by Audley Sheppard, Christina Cathey Schuetz and Audley Sheppard QC

11. What is the status of this country’s investment treaties?

United Kingdom

The UK remains open to negotiating new investment treaties.

Answer contributed by Audley Sheppard, Christina Cathey Schuetz and Audley Sheppard QC

Practicalities of commencing an investment treaty claim against this country

12. To which governmental entity should notice of a dispute against this country under an investment treaty be sent? Is there a particular person or office to whom a dispute notice against this country should be addressed?

United Kingdom

Government entity to which claim notices are sent

None specified; suggest sending claim notices to: FCO Legal Advisor, Foreign & Commonwealth Office, King Charles Street, SW1A 2AH London, United Kingdom.

Answer contributed by Audley Sheppard, Christina Cathey Schuetz and Audley Sheppard QC

13. Which government department or departments manage investment treaty arbitrations on behalf of this country?

United Kingdom

Government department that manages investment treaty arbitrations

Foreign and Commonwealth Office and Department for Business, Energy and Industrial Strategy.

Answer contributed by Audley Sheppard, Christina Cathey Schuetz and Audley Sheppard QC

14. Are internal or external counsel used, or expected to be used, by the state in investment treaty arbitrations? If external counsel are used, does the state normally go through a formal public procurement process when hiring them?

United Kingdom

Internal/External counsel

Internal counsel used in only known claim, external counsel may be used in future.

Answer contributed by Audley Sheppard, Christina Cathey Schuetz and Audley Sheppard QC

Practicalities of enforcing an investment treaty claim against this country

15. Has the country signed and ratified the Washington Convention on the Settlement of Investment Disputes between States and Nationals of Other States (1965)? Please identify any legislation implementing the Washington Convention.

United Kingdom

Washington Convention implementing legislation

The Washington Convention entered into force for the United Kingdom on 18 January 1967. The UK implemented the Washington Convention by the Arbitration (International Investment Disputes) Act 1966.

Answer contributed by Audley Sheppard, Christina Cathey Schuetz and Audley Sheppard QC

16. Has the country signed and ratified the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) (the New York Convention)? Please identify any legislation implementing the New York Convention.

United Kingdom

New York Convention implementing legislation

The United Kingdom ratified the New York Convention on 24 September 1975 (subject to the so-called reciprocity reservation). It has implemented the New York Convention by sections 100 to 104 of the Arbitration Act 1996.

Answer contributed by Audley Sheppard, Christina Cathey Schuetz and Audley Sheppard QC

17. Does the country have legislation governing non-ICSID investment arbitrations seated within its territory?

United Kingdom

Legislation governing non-ICSID arbitrations

The Arbitration Act 1996.

Answer contributed by Audley Sheppard, Christina Cathey Schuetz and Audley Sheppard QC

18. Does the state have a history of voluntary compliance with adverse investment treaty awards; or have additional proceedings been necessary to enforce these against the state?

United Kingdom

Compliance with adverse awards

No publicly available awards have been rendered against the United Kingdom.

Answer contributed by Audley Sheppard, Christina Cathey Schuetz and Audley Sheppard QC

19. Describe the national government’s attitude towards investment treaty arbitration

United Kingdom

Attitude of government towards investment treaty arbitration

The UK government is generally favourable towards investment treaty arbitration, evidenced by the over 100 BITs and the ECT entered into by the United Kingdom which typically offer investors the right to enforce their treaty rights through investment treaty arbitration.

In the Seventh Report of Session 2017-19, ‘UK investment policy’ (24 July 2019), the House of Commons International Trade Committee noted that the use of ISDS in international investment agreements has proved hugely controversial. The committee recommended that in addition to clarifying its stance on investment protection standards and dispute resolution mechanisms for investors, the government must carefully consider and fully evaluate alternatives to ISDS in the agreements it negotiates moving forward – such as the EU investment court system and the proposal for a multilateral investment court. It further urged the government to consider including provisions in any international investment agreements to counterbalance investor rights, such as enshrining investor obligations, allowing for state counterclaims or ‘carve-outs’ from investment protection (p. 37).

In response to the report, the UK government indicated that it supports the use of arbitration as a means of resolving investor-state dispute. In the same response, the government stated that it is open to considering proposed innovations such as the Investment Court System or Multilateral Investment Court in formulating its future investment policy.

The UK is a signatory to the United Nations Convention on Transparency in Treaty-based Investor-State Arbitration (Mauritius Convention on Transparency), which is designed to make publicly available information on investor-state arbitrations arising under investment treaties. The Convention entered into force on 18 October 2017 but the UK has yet to ratify it.

After protracted negotiations, on 17 October 2019, the UK and the EU agreed on a withdrawal agreement and a political declaration setting out the framework for the future relationship between the UK and the EU. On 23 January 2020, the UK Parliament approved the withdrawal agreement by enacting implementing legislation. The agreement was ratified by the Council of the European Union on 30 January 2020. Formally, the UK left the EU on 31 January 2020. The withdrawal agreement entered into force on 1 February 2020, and provides for a transition period from 1 February 2020 to 31 December 2020, during which the UK is still bound by EU law even though it can no longer participate in the EU’s decision making process.

Therefore, until the end of the transition period, the UK is still subject to the March 2018 judgment of the Court of Justice of the EU in the case of Slovak Republic v Achmea B.V. (Case C-284/16), which held that an arbitration clause in an intra-EU BIT was incompatible with EU law.

  • On 19 July 2018, the European Commission published a Communication, entitled ‘Protection of intra-EU investment’, which provides that as a consequence of the Achmea judgment, ‘all investor-State arbitration clauses in intra-EU BITS are inapplicable and that any arbitration tribunal established on the basis of such clauses lacks jurisdiction due to the absence of a valid arbitration agreement’ and, therefore, national courts are bound to annul awards based on intra-EU BITs and EU member states are bound to terminate their intra EU BITs (p. 3). Further, the Communication states that article 26 of the Energy Charter Treaty does not provide for investor-State arbitration between investors from EU member states and EU member states (pp. 3-4), although a number of ECT tribunals have rejected arguments that they lack jurisdiction where the investor and the state respondent are both from the EU.
  • On 15 January 2019, with reference both to the Achmea judgment and the Commission Communication, the various EU member states issued Declarations by which they committed to terminate their intra-EU BITs and to apply their best endeavours to do so by 6 December 2019. The Declarations gave notice to the investor community and arbitral tribunals that no new arbitrations should be initiated under intra-EU BITs. With regard to completed arbitrations, member states were called upon to resist enforcement or seek to set aside awards against them, insofar as such awards are still capable of challenge (separately, the Commission Communication identified a corresponding obligation of member state courts to annul or refuse to enforce any arbitral award rendered under an intra-EU BIT). As to awards or settlements no longer capable of challenge, the member states committed to discuss practical arrangements in relation to those.
  • On 5 May 2020, 23 EU member states signed the plurilateral treaty to terminate intra EU-BITs (the ‘Termination Treaty’) which implements the Achmea decision. Under the Termination Treaty, both intra-EU BITs and the sunset clauses contained therein are terminated. Moreover, the member states agree that ISDS clauses in intra-EU BITs should not serve as the legal basis for any proceedings that commenced after 6 March 2018 (the date of the Achmea judgment). For proceedings that were commenced before 6 March 2018 but not concluded, the Termination Treaty envisioned two types of transitional measures, ‘structured dialogue’ and access to national courts, which investors are entitled to on the condition that they withdraw the pending arbitration proceedings. It is notable that while the UK signed the 15 January 2019 declaration, it has yet to sign the Termination Treaty as of 13 July 2020. The European Commission sent a formal notice to the UK on 14 May 2020, which was the first step for launching infringement proceedings against the UK for its failure to sign the Termination Treaty.
  • The UK and the EU are currently negotiating a Free Trade Agreement (FTA), and both have released draft working texts of the FTA. However, neither party has included an ISDS provision in the text. It remains to be seen whether the final version of the FTA will include an ISDS mechanism. It is expected that the EU would insist on the model agreement in its Canada FTA (CETA), while the UK prefers the use of arbitration. The differing approaches to ISDS are complicated by the fact that the EU and the UK are looking to conclude an FTA by the end of 2020. If the FTA did include an ISDS mechanism, it could amount to a ‘mixed agreement’ requiring ratification by individual EU member states in addition to the approval of the Council of the EU and the European Parliament.

    In terms of its trade relationships with non-EU states, the UK is still covered by EU-third country trade agreements until 31 December 2020. From 2021 onwards, however, EU trade agreements will no longer apply to the UK.

    The UK government is in the process of negotiating post-Brexit continuity agreements to ‘roll over’ the EU’s existing FTAs with third countries. These are intended substantially to replicate the EU’s current arrangements and preserve the UK’s existing trading relationships with third countries. So far, 20 continuity agreements have been signed, and the UK government is in discussion with 18 other countries or trading blocs that have trade agreements with the EU. The UK also signed mutual recognition agreements with Australia, New Zealand and the USA, which have the effect of replicating the existing EU agreements.

    In addition to negotiating continuity agreements, the UK government is also negotiating new trade agreements. Negotiation with Australia on a new wide-ranging free trade agreement started in June 2020. In a policy paper on the UK’s Strategic Approach to negotiating the UK–Australia FTA published 19 June 2020, it was noted that the mechanism for resolving investment disputes ‘must reflect modern approaches, deliver fair outcomes of claims, require high ethical standards for arbitrators, and include transparent proceedings’ [emphasis added]. It seems that the UK government remains in full favour of arbitration, as opposed to alternative models such as the creation of a permanent investment tribunal and appellate tribunal in CETA. The policy paper also indicated that the UK government will ensure that its right to regulate is protected.

    The UK is considering seeking accession in the medium term to the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), the investment chapter of which provides for ISDS (although the UK would need to be invited to do so by the 11 CPTPP member countries). The UK– Australia FTA, according to the policy paper, is an important step towards doing so.

    Answer contributed by Audley Sheppard, Christina Cathey Schuetz and Audley Sheppard QC

    20. To what extent have local courts been supportive and respectful of investment treaty arbitration, including the enforcement of awards?

    United Kingdom

    Attitude of local courts towards investment treaty arbitration

    In Unión Fenosa Gas, S.A. v Arab Republic of Egypt [2020] EWHC 1723 (Comm), the Commercial Court confirmed that the registration of an ICSID award does not require service of claim form. The claimant, UFG, obtained a without notice order for registration and enforcement of an ICSID award from Males J, a judge of the English High Court. It sought to serve the order, but not an arbitration claim form, on Egypt through the Foreign and Commonwealth Office. The order was not served on Egypt, because of a failure to direct the documents to the correct governmental department. UFG applied to dispense with the service of Males J’s order, which was granted by Teare J. One month later, UFG obtained a further without notice order from Waksman J to serve Teare J’s order on Egypt’s solicitors. Rejecting Egypt’s application to set aside the orders of Teare J and Waksman J, the Commercial Court confirmed that in contrast to other parts of CPR 62 concerning non-ICSID Convention awards, there was no reference in CPR 62.21 to the claim form or service of the claim form. That reflected the different and simplified procedure for registration of ICSID Convention awards to which CPR.62.21 applied. Moreover, it was permissible to dispense with service of the order permitting enforcement pursuant to CPR 6.28, but in such cases the state should be notified that the order has been made. Exceptional circumstances are not required in order for this discretion to be exercised.

    In Ioan Micula & Others v Romania [2020] UKSC 5, the Supreme Court lifted a stay, imposed by the High Court and continued by the Court of Appeal, on the enforcement of an ICSID award. The Supreme Court noted that even though the Court of Justice of the EU (CJEU) annulled a European Commission decision that the execution of the award by Romania would constitute unlawful state aid, the initiating decision subsists as the Commission has not made a final decision closing the formal investigation procedure. Therefore the English court has a duty of sincere cooperation not to take any steps that would conflict with the Commission decision (ie.,enforcing the ICSID award). On the other hand, article 54(1) of the ICSID Convention does not permit domestic courts to re-examine the merits of an ICSID award. The stay in this case is therefore impermissible under the Convention, as Romania sought to stay the enforcement on substantive EU law grounds. Faced with the potential conflict, the Supreme Court applied article 351 TFEU, which requires that obligations arising from pre-EU accession treaties involving non-EU countries take precedence over EU law obligations. The Court held that while Sweden (the Micula brothers’ home state), Romania and the UK were at all relevant times EU member states, obligations under the ICSID Convention were owed to all contracting states, as exemplified in articles 54 and 69 of the Convention. Therefore, the UK’s obligation to enforce the ICSID award is a pre-accession obligation, and unaffected by its duty of sincere cooperation.

    In General Dynamics v Libya [2019] EWCA Civ 1110, the Claimant sought to enforce an ICC award against Libya pursuant to section 101 of the Arbitration Act 1996. The Claimant obtained an order dispensing with service via the FCO and permitting the documents to be couriered to the Ministry of Foreign Affairs of Libya. In upholding the order, the Court of Appeal interpreted the State Immunity Act 1978 section 12 ,which provides that documents for instituting proceedings against a State must be served via the FCO. In this case, section 12 does not apply, because an arbitration claim or an order permitting the enforcement of an arbitration award are not documents instituting proceedings. The latter had to be served, pursuant to CPR 62.18(8)(b) and 6.44, but the court had jurisdiction in an appropriate case to dispense with service – in this case, service through the FCO would be dangerous, not straightforward, and likely take over a year.

    In Koza Limited and Hamdi Akin Ipek v Mustafa Akçil and others [2019] EWCA Civ 89, Koza Limited (the first appellant) had given an undertaking not to dispose of any of its funds ‘other than in the ordinary and proper course of business’. One of the items of expenditure that Koza sought approval for (ie, a positive declaration) was to fund its alleged holding company IIL’s ICSID arbitration proceedings against Turkey. On 21 December 2017, the High Court granted a negative declaration, ruling that funding the ICSID arbitration o IIL was not in the ordinary and proper course of Koza’s business. In the appeal proceedings, the Court of Appeal granted the appeal to the extent of discharging the negative declaration granted, on the grounds that: (i) the High Court judge had erred in concluding that the ICSID tribunal did not have jurisdiction to hear the claim; (ii) the expenditure was exceptional but that did not preclude it from being within the ordinary course of business; (iii) it was reasonable in the circumstances for Koza to fund the arbitration. However, the Court of Appeal refrained from granting a positive declaration and contended that if the appellant pursued the arbitration funding, it did so at the risk that it might be shown to be in breach of its undertaking.

    Following the determination of this appeal, Koza Altin, one of the respondents in the appeal above, applied for an injunction restraining the appellants from using or committing to use the assets of Koza to fund the ICSID arbitration. The High Court granted the injunction on an interim basis in Koza Ltd and another v Koza Altin Isletmeleri AS [2020] EWHC 654 (Ch). The injunction was sought on the basis that, first, there was a serious issue to be tried as to whether the proposed funding would be both a breach of undertakings previously given to the court by Koza, as well as being part of an allegedly fraudulent scheme, an important part of which was a false instrument, namely the share purchase agreement that allegedly made IIL the ultimate holding company of the Koza group. Secondly, the balance of convenience firmly favoured the grant of such relief. A pertinent factor in the assessment of the balance of convenience was whether the prosecution of the arbitration could be funded from other sources available to Mr Ipek, the second appellant.

    In State A v Party B [2019] EWHC 799 (Comm), the English High Court dismissed an application by Kazakhstan to extend the time for bringing a jurisdictional challenge under section 67 of the Arbitration Act 1996 in circumstances where the challenge was 959 days late. While the decision of the High Court is anonymised and heavily redacted, making it difficult to glean a full picture of the factual background, the High Court held that where the delay is lengthy and the application for an extension is based on fresh evidence, an extension will only be justified by fresh evidence that is ‘transformational’ or ‘seismic’.

    In GPF GP S.à.r.l. v Republic of Poland [2018] EWHC 409 (Comm), the English Commercial Court heard a challenge to an award rendered by a London-seated tribunal constituted under the SCC Rules that it had no jurisdiction to hear the parties’ dispute. As the court is permitted to do under section 67 of the Arbitration Act 1996, it conducted a full re-hearing of the jurisdictional stage of the arbitration. In this context, the court found that it had authority to interpret the BIT in accordance with international law, and, adopting reasoning different from that of the arbitral tribunal, it held that the tribunal did have jurisdiction to hear the merits of the case (concerning claims in respect of direct and indirect expropriation and alleged breach of the FET standard).

    In OAO Tatneft v Ukraine [2018] EWHC 1797 (Comm), Ukraine applied to have set aside an order by the English Commercial Court for recognition and enforcement of a UNCITRAL award (Paris seat) made under the Russia-Ukraine BIT. Ukraine argued, inter alia, that (i) it had not consented to arbitration for breaches of the FET standard and so had not lost state immunity, (ii) the investor did not have an investment for the purposes of jurisdiction under the BIT, and (iii) the claim was an abuse of rights. The judge followed the decision of the Court in GPF GP S.à.r.l. v Republic of Poland [2018] EWHC 409 (Comm) and found that it was for the Court to interpret the BIT in accordance with international law. Followig an extensive analysis of the relevant BIT and investment treaty jurisprudence, the Commercial Court dismissed Ukraine’s application. An appeal against this decision was heard in the Court of Appeal, but the decision was unreported.

    In Anatolie Stati & Others v Kazakhstan [2018] EWCA Civ 1896 (Comm), the Court of Appeal overturned an order of a single judge of the English Commercial Court to grant Kazakhstan’s application to set aside the investors’ notice of discontinuance in relation to an order it had obtained to enforce a US$500 million SCC award against Kazakhstan for breach of the Energy Charter Treaty. Kazakhstan had previously applied to set aside the enforcement order on the basis that the award was obtained through fraud. The judge of the English Commercial Court considered this application and determined that there was prima facie evidence of fraud and that it would hear the merits of the set aside application. During the course of the proceedings on the merits, the investors filed a notice of discontinuance immediately before they were due to disclose documents. The investors claimed they had inadequate resources to continue the proceedings and that they had secured sufficient attachment orders for the award in other jurisdictions. Kazakhstan then sought to have the notice of discontinuance set aside so that it had the opportunity to present its fraud case. The judge granted Kazakhstan’s application, finding that the investors’ explanations as to the timing of their notice were unconvincing and that the merits of Kazakhstan’s fraud claim should be determined. In reaching this conclusion, the judge considered that the court’s judgment would be useful in the other jurisdictions dealing with enforcement proceedings in respect of the award and that the resources that would be committed by the court in determining the application would be reasonable. This order was subsequently overturned on appeal. The Court of Appeal held that the state did not have a legitimate interest in continuing the proceedings and that it was not a function of the English courts to hear cases which have no relevant results. The Court noted that, aside from the enforcement of the award, there was otherwise no connection to the English jurisdiction. The order permitting the discontinuance of the enforcement proceedings was subject to the condition that the investors undertake not to seek enforcement of the award in the future.

    In JKX Oil & Gas et al v Ukraine [2017] (unpublished, but reported in Global Arbitration Review), an English court dismissed an application by Ukraine to set aside a UNCITRAL award in favour of oil and gas company JKX. The award ordered the payment of compensation for measures restricting the sale of gas and the transfer of dividends and that Ukraine pay JKX’s costs within 14 days.

    In Malicorp Limited v Government of the Arab Republic of Egypt, Egyptian Holding Company for Aviation, Egyptian Airports Company [2015] EWHC 361 (Comm), an English court granted Egypt’s application to set aside an order for enforcement of an arbitration award made by the Cairo Regional Centre for International Commercial Arbitration. The court held that a refusal to enforce was appropriate where the award had been set aside by a decision of the Cairo Court of Appeal (ie. a court of the seat of the arbitration), which found that Egypt ‘had not been given proper notice of the appointment of the arbitrator or of the arbitration proceedings or had otherwise been unable to present their case’.

    In The Mayor and Commonalty & Citizens of the City of London v Ashok Sancheti v United Kingdom [2008] EWCA 1283, an English court addressed issues relating to the relationship between international arbitration under a UK BIT and national court proceedings. In particular, a dispute arose between Mr Sancheti, a lawyer of Indian nationality, and his landlord, the City of London with regard to a rent increase. The Corporation commenced national litigation against Mr Sancheti for the amounts allegedly due but Mr Sancheti sought to stay court proceeding under section 9 of the Arbitration Act 1996, on the basis that he had filed a notice of arbitration under the UK–India BIT against the UK government. In this regard, the Court of Appeal had to consider whether Roussel-Uclaf v GD Searle & Co Ltd [1978] 1 Lloyd’s Rep 225 was right to give a very extensive interpretation of the stay provisions of what is now section 9 of the Arbitration Act 1996, so to apply it to persons who were not parties to the arbitration agreement. The Court of Appeal overturned the above extensive interpretation and refused to grant the stay on the grounds that the City of London was not a party to the arbitration agreement under section 9 of the Arbitration Act 1996. In this regard, the Court emphasised that it would be wholly inconsistent with the purpose and structure of the Arbitration Act 1996 if a stay could be obtained against a claimant who was not a party to the arbitration agreement.

    There have been other cases in which the English courts have addressed questions relevant to investment treaty disputes not involving a UK BIT:

    In Occidental Exploration & Production Co v Ecuador [2005] EWCA Civ. 1116, the Court of Appeal held that English courts have jurisdiction to entertain an application of the Respondent, challenging the jurisdiction of the arbitral tribunal.

    In Czech Republic v European Media Ventures SA [2007] EWHC 2851 – an application to set aside an arbitral award issued in England was refused by the Court of Appeal on grounds that the Belgium-Luxembourg-Czech Republic BIT authorised an arbitral tribunal to determine entitlement to compensation for expropriation and not merely issues as to quantification.

    In Republic of Ecuador v Occidental Exploration & Production Co [2007] EWCA Civ 656 – an appeal of a decision declining to set aside an arbitral award was denied by the Court of Appeal on grounds that an arbitral tribunal had jurisdiction to make an award in respect of a dispute involving matters of taxation that arose in connection with a BIT between the United States and Ecuador.

    In ETI Euro Telecom International NV v (1) Bolivia (2) Empresa Nacional de Telecommunicaciones Entel SA [2008] EWCA Civ 880 – the Court of Appeal held that the English court did not have jurisdiction under the Civil Jurisdiction and Judgments Act 1982 section 25 and the Civil Jurisdiction and Judgments Act 1982 (Interim Relief) Order 1997 to make a freezing injunction in aid of attachment proceedings in New York, which proceedings in turn were in aid of an ICSID arbitration.

    Gold Reserve Inc v Bolivarian Republic of Venezuela [2016] EWHC 153 – the court declined to set aside an ex parte order giving a Canadian company the right to enforce an arbitration award against Venezuela as if it were a judgment. The court found that Venezuela had agreed to arbitrate and was, therefore, not entitled to state immunity.

    In Republic of Korea v Dayyani & Others [2019] EWHC 3580 (Comm), Korea initiated a challenge to the substantive jurisdiction of arbitrators in a London-seated BIT arbitration under section 67 Arbitration Act 1996. The court adopted a broad interpretation of ‘investment’, ‘property’ and ‘assets’ under the Korea–Iran BIT and held that the tribunal had jurisdiction over the dispute. The judge stated that the court will examine a BIT award with ‘care and interest’ and, if and to the extent that the tribunal’s reasoning is persuasive, there is ‘no reason why the [c]ourt should not be persuaded by it’.

    Answer contributed by Audley Sheppard, Christina Cathey Schuetz and Audley Sheppard QC

    National legislation protecting inward investments

    21. Is there any national legislation that protects inward foreign investment enacted in this country? Describe the content.

    United Kingdom

    National Legislation

    There is no specific national legislation that protects foreign investment in the UK. The laws of (i) England and Wales, (ii) Northern Ireland and (iii) Scotland do not distinguish between domestic and foreign investments, except in limited circumstances where investments are deemed to affect national security.

    English law and Scottish law protects against unlawful expropriation without compensation and provides for judicial review of government decisions.

    Answer contributed by Audley Sheppard, Christina Cathey Schuetz and Audley Sheppard QC

    National legislation protecting outgoing foreign investment

    22. Does the country have an investment guarantee scheme or offer political risk insurance that protects local investors when investing abroad? If so, what are the qualifying criteria, substantive protections provided and the means by which an investor can invoke the protections?

    United Kingdom

    Relevant guarantee scheme Qualifying criteria, substantive protections provided and practical considerations
    Export Credits Guarantee Department (ECGD)

    The Export Credits Guarantee Department (UK Export Finance, www.ukexportfinance.gov.uk) is the UK’s export credit agency. UK Export Finance complements the private market by providing assistance to exporters and investors, principally in the form of insurance and guarantees to banks.

    UK Guarantees

    In 2016, the government announced that the availability of the UK Guarantees scheme will be extended to at least 2026. The £40 billion exports refinancing facility will provide long-term loans for overseas buyers of UK exports at competitive rates by guaranteeing a series of short-term bank loans.

    See: https://www.gov.uk/government/publications/uk-guarantees-scheme-key-documents.

    Multilateral Investment Guarantee Agency Act 1988

    The UK has enacted legislation to give effect to the Convention establishing the Multilateral Investment Guarantee Agency (MIGA 1985). Under the Convention, UK nationals and corporate entities are eligible to acquire, for the payment of a premium, political risk insurance from MIGA in respect of certain developing states, provided that certain conditions are met. To be eligible for assistance, the investment must be medium to long term in nature, support the host country's development goals, comply with MIGA’s policy on Social and Environmental Sustainability and anti-corruption and fraud standards, and also be financially viable.

    Answer contributed by Audley Sheppard, Christina Cathey Schuetz and Audley Sheppard QC

    Awards

    23. Please provide a list of any available arbitration awards or cases initiated involving this country’s investment treaties.

    United Kingdom

    Awards

    A11Y Ltd v Czech Republic, ICSID Case No. UNCT/15/1, Memorandum and Order of the US District Court for the Southern District of New York, 28 December 2018 (UK–Czech Republic BIT)

    AES Summit Generation Limited and AES-Tisza Erömü Kft. v Republic of Hungary (Number 2), ICSID Case No. ARB/07/22, Award, 23 September 2010 (Energy Charter Treaty)

    Accession Mezzanine Capital L.P. and Danubius Kereskedöház Vagyonkezelö Zrt. v Hungary, ICSID Case No. ARB/12/3, Decision On Respondent’s Objection Under Arbitration Rule 41(5), 16 January 2013 and Decision on Respondent's Notice of Jurisdictional Objections and Request for Bifurcation, 8 April 2013; Award, 17 April 2015 (UK–Hungary BIT).

    Ali Allawi v Islamic Republic of Pakistan, UNCITRAL, Award, 2016 (not public) (UK–Pakistan BIT)

    Anglia Auto Accessories Ltd v The Czech Republic, SCC Case No. 2014/181, Award, 10 March 2017 (UK–Czech Republic BIT)

    Anglo American PLC v Bolivarian Republic of Venezuela, ICSID Case No. ARB(AF)/14/1, Final Award 18 January 2019 (United Kingdom-Venezuela BIT)

    AWG Group Ltd v The Argentine Republic, UNCITRAL, Award, 9 April 2015, upheld by the US District Court for the District of Columbia, 30 September 2016 (UK–Argentina BIT)

    Asian Agricultural Products Ltd v Republic of Sri Lanka, ICSID Case No. ARB/87/3, Final Award, 27 June 1990 (UK–Sri Lanka BIT)

    BG Group Plc v Argentina, UNCITRAL, Award, 24 December 2007, Petition to Vacate or Modify Arbitration Award filled by the Respondent, 20 March 2008, Judgment of the Supreme Court of the United States, 5 March 2014 (UK–Argentina BIT)

    Biwater Gauff (Tanzania) Ltd v United Republic of Tanzania, ICSID Case No. ARB/05/22, Award, 24 July 2008 (UK–Tanzania BIT)

    British Caribbean Bank Ltd v Government of Belize, UNCITRAL-PCA Case No. 2010-18, Award, 19 December 2014 (UK–Belize BIT)

    Churchill Mining PLC and Planet Mining Pty Ltd v Republic of Indonesia, ICSID Case No. ARB/12/14 and 12/40, Award, 6 December 2016, Decision on Annulment, 18 March 2019 (UK–Indonesia BIT)

    Cem Cenzig Uzan v Republic of Turkey, SCC Case No. 2014/023, Award on Respondent’s Bifurcated Preliminary Objection, 20 April 2016 (Energy Charter Treaty)

    Cortec Mining Kenya Limited, Cortec (Pty) Limited and Stirling Capital Limited v Republic of Kenya, ICSID Case No. Arb/15/29, Award, 22 October 2018 (UK–Kenya BIT) (annulment proceedings pending)

    Dunkeld International Investment Ltd v Government of Belize [I], PCA Case No. 2010-13, Award, 28 June 2016 (Tribunal correction 17 August 2016) (UK–Belize BIT and Exchange of Notes)

    Eiser Infrastructure Limited and Energía Solar Luxembourg S.à r.l. v Kingdom of Spain, ICSID Case No. ARB/13/36, Award, 4 May 2017; Decision on Annulment, 11 June 2020 (Energy Charter Treaty)

    EDF (Services) Limited v Romania, ICSID Case No. ARB/05/13, Award, 98 October 2009 (UK–Romania BIT)

    Garanti Koza LL.PLLP. v Turkmenistan, ICSID Case No. ARB/11/20, Award, 19 December 2016 (UK–Turmenistan BIT)

    Guaracachi America Inc and Rurelec PLC v Bolivia Plurinational State of Bolivia, UNCITRAL-PCA Case No. 2011-17, Award, 31 January 2014 (UK–Bolivia BIT)

    ICS Inspection and Control Services Limited (United Kingdom) v The Republic of Argentina, UNCITRAL, PCA Case No. 2010-9, Award on Jurisdiction,10 February 2012 (UK–Argentina BIT)

    ICW Europe Investments Limited v Czech Republic, UNCITRAL, Award, 15 May 2019 (UK–Czech Republic BIT, ECT)

    Inicia Zrt, Kintyre Kft and Magyar Farming Company Ltd v Hungary, ICSID Case No. ARB/17/27; Award, 13 November 2019; Annulment committee constituted, 1 June 2020 (UK–Hungary BIT)

    InfraRed Environmental Infrastructure GP Limited and others v Kingdom of Spain, ICSID Case No. ARB/14/12, Award, 2 August 2019 (Energy Charter Treaty)

    Inspection and Control Services Limited (ICS) v Argentina, UNCITRAL-PCA Case No. 2010-9, Award on Jurisdiction, 10 February 2012 (UK-Argentina BIT)

    JKX Oil & Gas plc, Poltava Gas BV and Poltava Petroleum Company v Ukraine, SCC Emergency Arbitration Case No. EA (2015/002), Emergency Award, 14 January 2015 (UK–Ukraine BIT, ECT)

    JKX Oil & Gas plc, Poltava Gas BV and Poltava Petroleum Company v Ukraine, UNCITRAL, initiated in 2015, Award, 6 February 2017 (UK–Ukraine BIT and ECT)

    Joy Mining Machinery Limited v Arab Republic of Egypt, ICSID Case No. ARB/03/11, Award on Jurisdiction, 6 August 2004 (UK–Egypt BIT)

    J.P. Busta and I.P. Busta v The Czech Republic, SCC Case No. 2015/014, initiated in 2015, Award, 10 March 2017 (UK–Czech Republic BIT)

    National Grid plc v Argentina, UNCITRAL, Award, 3 November 2008, upheld by the US District Court for the District of Columbia, 7 June 2010 (UK–Argentina BIT)

    Malaysian Historical Salvors, SDN, BHD v Government of Malaysia, ICSID Case No. ARB/05/10, Award on Jurisdiction, 17 May 2007; Decision on the Application for Annulment, 16 April 2009 (UK–Malaysia BIT)

    Malicorp Limited v Egypt, ICSID Case No. ARB/08/18, Award, 7 February 2011 and Decision on the Application for Annulment of Malicorp Limited, 3 July 2013 (UK–Egypt BIT)

    Menzies Middle East and Africa SA and Aviation Handling Services International Ltd v Republic of Senegal, ICSID Arbitration No. ARB/15/21, Award, 5 August 2016 (UK–Senegal BIT)

    Oxus Gold plc v Republic of Uzbekistan the State Committee of Uzbekistan for Geology & Mineral Resources, and Navoi Mining & Metallurgical Kombinat, UNCITRAL, Award on Jurisdiction, 1 January 2012; Award 17 December 2015 (UK–Uzbekistan BIT)

    Petrobart Ltd v The Kyrgyz Republic, SCC Case No. 126/2003, Award, 29 March 2005 (Energy Charter Treaty)

    Rafat Ali Rizvi v Republic of Indonesia, ICSID Case No. ARB/11/13, Award on Jurisdiction, 16 July 2013 (UK–Indonesia BIT)

    Raymond Charles Eyre and Montrose Developments (Private) Limited v Democratic Socialist Republic of Sri Lanka, ICSID Case No. ARB/16/25, Award, 5 March 2020 (UK–Sri Lanka BIT)

    RREEF Infrastructure (G.P.) Limited and RREEF Pan-European Infrastructure Two Lux S.à r.l. v Spain, ICSID Case No. ARB/13/30, Award, 11 December 2019; Application to annul the award, 15 April 2020 (Energy Charter Treaty)

    RosInvestCo UK Ltd v The Russian Federation, SCC Case No. V079/2005, Final Award, 12 September 2010, award and decision partially set aside by Svea Court of Appeal, 5 September 2013 (UK–Russian Federation BIT)

    Standard Chartered Bank v The United Republic of Tanzania, ICSID Case No. ARB/10/12, Award, 2 November 2012 (UK–Tanzania BIT)

    The PV Investors v Spain, PCA Case No. 2012-14, Final Award, 28 February 2020 (Energy Charter Treaty)

    Thomas Gosling, Property Partnerships Development Managers (UK), Property Partnerships Developments (Mauritius) Ltd, Property Partnerships Holdings (Mauritius) Ltd and TG Investments Ltd v Republic of Mauritius, ICSID Case No. ARB/16/32, Award, 18 February 2020 (UK–Mauritius BIT)

    Vestey Group Ltd v Bolivarian Republic of Venezuela, ICSID Case No. ARB/06/4, Award, 15 April 2016; Decision on Annulment, 26 April 2019 (UK– Venezuela BIT) [reported in IAReporter]

    Wena Hotels Ltd v Arab Republic of Egypt, ICSID Case No. ARB/98/4, Final Award, 8 December 2000, Decision on Application for Annulment, 5 February 2002, Decision on the Claimant's Application for Interpretation of the Arbitral Award, 31 October 2005 (UK–Egypt BIT)

    William Nagel v Czech Republic, SCC, Case No. 049/2002, Award, 9 September 2003, upheld by Svea Court of Appeal, 26 August 2005 (UK–Czech Republic BIT)

    WNC Factoring Ltd v Czech Republic, PCA Case No. 2014-34, Award, 22 February 2017 (UK–Czech Republic BIT)

    Yukos Universal Limited (Isle of Man) v The Russian Federation, PCA Case No. AA 227, Award, 18 July 2014; Application to set aside dismissed by the Hague Court of Appeal, 18 February 2020 (Energy Charter Treaty)

    Pending proceedings

    UK as respondent

    Ashok Sancheti v United Kingdom, UNCITRAL, Notice of Arbitration, 16 September 2006, Judgment on Stay of Local Proceedings ([2008] EWCA Civ 1283), 11 November 2008 (UK–India BIT)

    UK as investor

    Aharon Naftali Biram, Gilatz Spain SL, Redmill Holdings Ltd and Sun-Flower Olmeda GmbH v Spain, ICSID, initiated in 2016 (Energy Charter Treaty)

    AS Norvik Banka, Alexander Guselnikov, Grigory Guselnikov and others v Republic of Latvia, ICSID Case No. ARB/17/47, Decision on the Proposals to Disqualify Messrs. James Spigelman, Peter Tomka and John M Townsend, 16 June 2020 (UK–Latvia BIT)

    Astro and South Asia Entertainment v India, UNCITRAL, Request for Arbitration, 2016 (UK–India BIT)

    Axiata Investments (UK) Limited and Ncell Private Limited v Nepal, ICSID Case No. ARB/19/15, initiated in 2019 (UK–Nepal BIT)

    Cairn Energy PLC v India, UNCITRAL, Procedural Order No. 16, 18 March 2019 (UK–India BIT)

    CIC Renewable Energies Italy GmbH, Enernovum Asset 1 GmbH & Co. KG, Enernovum GmbH & Co. KG and others v Italy, ICSID Case No. ARB/16/39, initiated in 2016 (Energy Charter Treaty)

    ConocoPhillips and Perenco v Vietnam, UNCITRAL, initiated in 2017 (UK–Vietnam BIT)

    Darley Energy Plc v Poland, UNCITRAL, initiated in 2016 (UK–Poland BIT)

    FREIF Eurowind v Kingdom of Spain, SCC Case No. 2017/060, initiated in 2017 (Energy Charter Treaty)

    Gerald International Limited v Republic of Sierra Leone, ICSID Case No. ARB/19/31, initiated in 2019 (UK–Sierra Leone BIT)

    Gabriel Resources Ltd and Gabriel Resources (Jersey) v Romania, ICSID Arbitration No. ARB/15/31, Procedural order No. 32, 26 May 2020 (UK–Romania BIT)

    Glencore Finance (Bermuda) Ltd v Bolivia, PCA, Procedural Order No. 11, 5 May 2020 (UK–Bolivia BIT)

    ICS Inspection and Control Services Limited v The Argentine Republic (Number 2), UNCITRAL, initiated in 2015 (UK–Argentina BIT)

    Ipek Investment Limited v Republic of Turkey, ICSID Case No. ARB/18/18, Procedural Order No. 13, 13 March 2020 (UK–Turkey BIT)

    Krederi Ltd v Ukraine, ICSID Case No. ARB/14/17, Award, 2 July 2018 (UK–Ukraine BIT)

    Mohammed Munshi v Mongolia, initiated in 2018 (Energy Charter Treaty)

    Paul D. Hinks, Symbion Power Tanzania Limited and Richard N. Westbury v Tanzania, ICSID Case No. ARB/19/17, Procedural Order no. 1, 3 March 2020 (UK–Tanzania BIT)

    Petroceltic Holdings Limited and Petroceltic Resources Limited v Arab Republic of Egypt, ICSID Case No. ARB/19/7, Suspension of proceedings until 8 September 2020, 8 June 2020 (UK–Egypt BIT)

    Prenay Agarwal, Vinita Agarwal and Ritika Mehta v Uruguay, UNCITRAL, initiated in 2017 (UK–Uruguay BIT)

    Shokat Mohammed Dalal v United Arab Emirates, ICSID Case No. ARB/19/10, Procedural Order No. 1, 21 November 2019 (UK–UAE BIT)

    Terence Highlands v Mexico, ICSID Case No. ARB/19/26, initiated in 2019 (UK–Mexico BIT)

    Rockhopper Exploration Plc, Rockhopper Italia S.p.A. and Rockhopper Mediterranean Ltd v Italian Republic, ICSID Case No. ARB/17/14, Decision on the Intra-EU Jursidctional Objection, 29 June 2019 (Energy Charter Treaty)

    Vedanta Resources plc v India, UNCITRAL, initiated in 2016 (UK–India BIT)

    Vodafone Group Plc and Vodafone Consolidated Holdings Limited v India (II), UNCITRAL, initiated in 2017 (UK–India BIT)

    Zaza Okuashvili v Georgia, SCC, initiated in 2019 (UK–Georgia BIT)

    Settled or discontinued disputes

    AES Summit Generation Limited v Republic of Hungary, ICSID case No. ARB/01/4, Order pursuant to Rule 43(1) of the ICSID Arbitration Rules, 3 January 2002 (UK-Hungary BIT)

    Anglia Auto Accessories, Ivan Peter Busta and Jan Peter Busta v The Czech Republic, discontinued pursuant to SCC Order for failure to pay advance on costs, 23 October 2014 (UK–Czech Republic BIT)

    ANZEF Limited v India, UNCITRAL, Notice of Arbitration, 2004 (UK–India BIT).

    Booker plc v Co-operative Republic of Guyana, ICSID Case No. ARB/01/9, Order pursuant to Rule 43(1) of the ICSID Arbitration Rules, 11 October 2003 (UK–Guyana BIT)

    Devincci Salah Hourani and Issam Salah Hourani v Republic of Kazakhstan, ICSID Case No. ARB/15/13, Order pursuant to Rule 43(1) of the ICISD Arbitration Rules, 15 July 2020 (UK–Kazakhstan BIT)

    DP World Callao S.R.L., P&O Dover (Holding) Limited, and The Peninsular and Oriental Steam Navigation Company v Peru, ICSID Case No. ARB/11/21, Procedural Order taking note of the discontinuance of the proceedings, 22 April 2020 (UK–Peru BIT)

    Dunkeld International Investment Ltd v Government of Belize (Number 2), UNCITRAL-PCA Case No. 2010-21, Settlement Agreement, 11 September 2015, Termination Order and Award of Costs, 31 December 2016 (UK–Belize BIT)

    Hortensia Margarita Shortt v Bolivarian Republic of Venezuela, ICSID Case No. ARB/11/30, Order pursuant to Rule 45 of the ICSID Arbitration Rules, 11 May 2015 (UK–Venezuela BIT)

    Indorama International Finance Limited v Arab Republic of Egypt, ICSID Case No. ARB/11/32, Order pursuant to Rule 43(1) of the ICSID Arbitration Rules, 2 July 2015 (UK–Egypt BIT)

    JacobsGibb Limited v Hashemite Kingdom of Jordan, ICSID Case No. ARB/02/12, Order pursuant to Rule 43(1) of the ICSID Arbitration Rules, 13 October 2004 (UK–Jordan BIT)

    Joy Mining Machinery v Egypt, ICSID Case No. ARB/03/11, Decision on Jurisdiction, 6 August 2004, Order of the Annulment Committee pursuant to Rule 43(1) of the ICSID Arbitration Rules, 16 December 2005 (UK–Egypt BIT)

    Oxus Gold v Kyrgyz Republic, UNCITRAL-LCIA, settled, no further data available (UK–Kyrgyzstan BIT)

    Paz Holdings Ltd v Plurinational State of Bolivia, UNCITRAL, settled in 2015 (UK–Bolivia BIT)

    Rafat Ali Rizvi v The Republic of Indonesia, ICSID Case No. ARB/11/13, Application for Annulment of Award, 15 November 2013, Order taking note of the discontinuance of the proceeding pursuant to ICSID Arbitration Rules 53 and 44, 4 May 2015 (UK–Indonesia BIT)

    Standard Chartered Bank v India, UNCITRAL, Notice of Arbitration, 2004 (UK–India BIT)

    Tullow Uganda Operations PTY LTD v Republic of Uganda, ICSID Case No. ARB/12/34, Order taking note of discontinuance of proceedings, 15 July 2015 (UK–Uganda BIT)

    UK Bank v Russian Federation, initiated, 2000 (UK–Russian BIT)

    Answer contributed by Audley Sheppard, Christina Cathey Schuetz and Audley Sheppard QC

    Reading List

    24. Please provide a list of any articles or books that discuss this country’s investment treaties.

    United Kingdom

    Chester Brown and Audley Sheppard, ‘United Kingdom’, in Chester Brown (ed), Commentaries on Selected Model Investment Treaties, Oxford University Press (2013), pp. 697–754.

    Clifford Chance LLP, ‘EU investment Treaty Protection Future Uncertain: What should investors do?’ (https://www.cliffordchance.com/briefings/2020/06/eu-investment-treaty-protection-future-uncertain--what-should-in.html, accessed 17 July 2020).

    Clifford Chance LLP, ‘The EU-UK future relationship: What happens after Brexit?’ (https://www.cliffordchance.com/briefings/2020/01/the-eu-uk-future-relationship--what-happens-after-brexit-.html, accessed 17 July 2020).

    Clifford Chance LLP, ‘ UK releases strategic approach for securing a free trade agreement with Japan’ (https://www.cliffordchance.com/briefings/2020/06/uk-releases-strategic-approach-for-securing-a-free-trade-agreeme.html, accessed 17 July 2020).

    Clifford Chance LLP, ‘Brexit – Key Questions Answered’ (https://www.cliffordchance.com/briefings/2019/07/brexit_key_questionsanswered.html, accessed 8 August 2019).

    Clifford Chance LLP, ‘UK Nationalisation: The Law and the Cost – 2019 Update’, (https://www.cliffordchance.com/briefings/2019/05/uk_nationalisationthelawandthecost-201.html, accessed 8 August 2019).

    Columbia Center on Sustainable Investment, ‘Beyond Trade Deals Charting a Post Brexit Course for UK Investment Treaties’, available at: http://ccsi.columbia.edu/files/2016/12/Beyond-trade-deals-charting-a-post-Brexit-course-for-UK-investment-treaties-Dec-2016.pdf (accessed 4 August 2019).

    Alex Potter, ‘United Kingdom’, The Foreign Investment Regulation Review https://thelawreviews.co.uk/edition/the-foreign-investment-regulation-review-edition-5/1149295/united-kingdom (accessed 4 August 2019).

    J Robert Basedow, ‘The Achmea Judgment and the Applicability of the Energy Charter Treaty in Intra-EU Investment Arbitration’ (2020) 23(1) Journal of International Economic Law 271.

    UCL European Institute, ‘British Foreign Investment Policy Post-Brexit: Treaty Obligations vs. Bottom-Up Reforms’ (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3001782).

    Eileen Denza and Shelagh Brooks, ‘Investment Protection Treaties: United Kingdom Experience’, (1987) 36 International Comparative Law Quarterly 908.

    Alejandro Escobar & Kate Hill, ‘Multilateral and Bilateral Investment Treaties and the United Kingdom’ in Julian D.M. Lew, Harris Bor et al (eds.), Arbitration in England (Kluwer Law International 2013), pp. 267–292.

    Ioannis Glinavos, ‘Brexit, the City and Options for ISDS’ (2018) 33(2) ICSID Review 380.

    House of Commons International Trade Committee, UK investment policy: Seventh Report of Session 2017–2019, 24 July 2019, available at: https://publications.parliament.uk/pa/cm201719/cmselect/cmintrade/998/998.pdf (accessed 4 August 2019).

    House of Lords European Union Committee, The Transatlantic Trade and Investment Partnership (HL Paper 179) (13 May 2014).

    Francis A. Mann, ‘British Treaties for the Promotion and Protection of Investments’ (1981) 52 British Yearbook of International Law 241.

    Arthur Nussbaum, ‘Arbitration Between The Lena Goldfields, Ltd and the Soviet Government (1950-51) 36 Cornell Law Quarterly 31.

    L. Poulsen, J. Bonnitcha & J. Yackee, ‘Analytical Framework for Assessing Costs and Benefits of Investment Protection Treaties’ (LSE Enterprise, March 2013), available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/260503/bis-13-1285-analytical-framework-for-assessment-costs-and-benefits-of-investment-protection.pdf (accessed 4 August 2019).

    Luke Eric Peterson, ‘UK Bilateral Investment Treaty Programme and Sustainable Development: Implications of Bilateral Negotiations on Investment Regulation at a Time When Multilateral Talks Are Faltering’, Royal Institute of International Affairs: Briefing Paper No. 10 (February 2004), available at: https://www.chathamhouse.org/sites/default/files/public/Research/Energy,%20Environment%20and%20Development/binvestfeb04.pdf (accessed 4 August 2019).

    Thomas Roe, ‘Illegality and Jurisdiction in Investment Arbitration’ (2016) Turkish Commercial Law Review Vol. 2 Issue 1, pp.17–26.

    Jiries Saadeh, ‘The European Union, Investment Treaties and Investment Arbitration Post Brexit’ available at http://arbitrationblog.practicallaw.com/the-european-union-investment-treaties-and-investment-arbitration-post-brexit/ (accessed 4 August 2019).

    Julian Scheu and Petyo Nikolov, ‘ The setting aside and enforcement of intra-EU investment arbitration awards after Achmea’ (2020) 36(2) Arbitration International 253.

    V. v Veeder Q.C., ‘The Lena Goldfields Arbitration: The Historical Roots of Three Ideas’ (1998) 47 International & Comparative Law Quarterly 747.

    V. v Veeder Q.C., ‘Lloyd George, Lenin and Cannibals: The Harriman Arbitration’ (2000) 16 (2) Arbitration International 115.

    Andrew Walter, ‘British Investment Treaties in South Asia: Current Status and Future Trends’ (Report Prepared for the Int’l Development Center of Japan, January 2000). See URL: http://personal.lse.ac.uk/wyattwal/images/British.pdf (accessed 4 August 2019).

    Notes

    1 By diplomatic notes dated 8 December 1994, the contracting parties agreed to extend application of the BIT to the Bailiwicks of Jersey and Guernsey, the Isle of Man, and Gibraltar.

    2 Recourse may be had to local courts only following negotiations with the host state.

    3 Recourse may be had to arbitration only if the Investor has commenced proceedings before the relevant local court or administrative tribunal of the host State and, after 18 months have passed following the commencement of those proceedings, no final decision has been rendered or the Investor disputes such final decision.

    4 By diplomatic notes dated 31 August 1981, the contracting parties agreed to extend application of the BIT to the Bailiwicks of Jersey and Guernsey and the Isle of Man.

    5 By diplomatic notes, the contracting parties agreed to extend application of the BIT to Hong Kong, the Bailiwicks of Jersey and Guernsey and the Isle of Man (notes dated 8 March 1983); the Turks and Caicos Islands (notes dated 10 December 1985); and the Cayman Islands (notes dated 4 February 1986).

    6 By diplomatic notes dated 3 December 1992, the contracting parties agreed to extend application of the BIT to the Bailiwicks of Jersey and Guernsey, the Isle of Man, the Turks and Caicos Islands and Bermuda.

    7 Recourse may be had to arbitration only if the dispute concerns compensation for losses owing to war or other armed conflict, a state of emergency or civil disturbance; expropriation; or breach of the obligation to allow unrestricted transfers of payments relating to the Investment.

    8 By diplomatic notes dated 7 December 1990, the contracting parties agreed to extend application of the BIT to the Bailiwicks of Jersey and Guernsey and the Isle of Man.

    9 No recourse may be had to arbitration if an Investor has already submitted the dispute to the host state’s courts.

    10 Recourse may be had to arbitration only if the dispute concerns ‘an amount of compensation’.

    11 Recourse may be had to arbitration only if the dispute concerns a breach of a specific agreement concluded between the investor and the host state; compensation for losses owing to war or other armed conflict, a state of emergency or civil disturbance; expropriation; or breach of the obligation to allow the repatriation of the Investment and returns.

    12 By diplomatic notes, the contracting parties agreed to extend application of the BIT to the Bailiwicks of Jersey and Guernsey, the Isle of Man (notes dated 25 September 1989) and Gibraltar (notes dated 3 January 1990).

    13 By diplomatic notes dated 22 April 1999, the contracting parties agreed to extend application of the BIT to the Bailiwicks of Jersey and Guernsey.

    14 By diplomatic notes dated 16 July 1992, the contracting parties agreed to extend application of the BIT to the Bailiwicks of Jersey and Guernsey, the Isle of Man, the Turks and Caicos Islands, Bermuda and Gibraltar.

    15 By diplomatic notes dated 15 September 1992, the contracting parties agreed to extend application of the BIT to the Bailiwicks of Jersey and Guernsey, the Isle of Man, the Turks and Caicos Islands, Bermuda and Gibraltar.

    16 By diplomatic notes dated 13 September 2001, the contracting parties agreed to extend application of the BIT to the Bailiwicks of Jersey and Guernsey and the Isle of Man.

    17 Following a cooling off period, recourse may be had either to arbitration or another dispute resolution mechanism agreed by the parties to the dispute.

    18 By diplomatic notes dated 25 October 1991, the contracting parties agreed to extend application of the BIT to the Bailiwicks of Jersey and Guernsey, the Isle of Man, the Turks and Caicos Islands, Bermuda and Gibraltar.

    19 By diplomatic notes dated 30 July 1999, the contracting parties agreed to extend this BIT to Bermuda, the Bailiwicks of Jersey and Guernsey and the Isle of Man.

    20 By diplomatic notes dated 31 October 1991, the contracting parties agreed to extend application of the BIT to the Bailiwicks of Jersey and Guernsey and the Isle of Man.

    21 By diplomatic notes, the contracting parties agreed to extend this BIT to the Bailiwicks of Jersey and Guernsey and the Isle of Man (notes dated 14 June 1981) and to Hong Kong (notes dated 14 May 1986).

    22 By diplomatic notes dated 29 July 1999, the contracting parties agreed to extend this BIT to the Bailiwicks of Jersey and Guernsey and the Isle of Man.

    23 By diplomatic notes dated 13 March 2000, the contracting parties agreed to extend this BIT to the Bailiwicks of Jersey and Guernsey and the Isle of Man.

    24 By diplomatic notes dated 19 January and 16 March 1983, the contracting parties agreed to extend this BIT to Hong Kong, the Bailiwicks of Jersey and Guernsey and the Isle of Man.

    25 By diplomatic notes dated 21 July 1999, the contracting parties agreed to extend this BIT to the Bailiwicks of Jersey and Guernsey and the Isle of Man.

    26 By diplomatic notes dated 12 August 1992, the contracting parties agreed to extend application of the BIT to the Bailiwicks of Jersey and Guernsey and the Isle of Man.

    27 By diplomatic notes dated 30 September 1999, the contracting parties agreed to extend application of the BIT to the Bailiwicks of Jersey and Guernsey and the Isle of Man.

    28 By diplomatic notes dated 22 April 1999, the contracting parties agreed to extend this BIT to the Bailiwicks of Jersey and Guernsey and the Isle of Man.

    29 By diplomatic notes dated 11 October 1999, the contracting parties agreed to extend this BIT to the Bailiwicks of Jersey and Guernsey and the Isle of Man.

    30 By diplomatic notes, the contracting parties agreed to extend this BIT to the Cayman Islands (notes dated 3 June 1987) and to the Bailiwicks of Jersey and Guernsey and the Isle of Man (notes dated 5 May 1999).

    31 By diplomatic notes dated 4 May 1983, the contracting parties agreed to extend this BIT to Hong Kong, the Bailiwicks of Jersey and Guernsey and the Isle of Man.

    32 By an exchange of diplomatic notes, the contracting parties agreed to extend this BIT to the Turks and Caicos Islands (notes dated 17 December 1985) and to Hong Kong, the Bailiwicks of Jersey and Guernsey, and the Isle of Man (notes dated 11 April 1990).

    33 Recourse may be had to arbitration only if the dispute concerns a breach of Article 5 of the BIT (expropriation).

    34 By diplomatic notes, the contracting parties agreed to extend this BIT to Hong Kong (notes dated 4 March 1976), to the Bailiwicks of Jersey and Guernsey and the Isle of Man (notes dated 22 September 1983), to the Turks and Caicos Islands (notes dated 8 February 1986).

    35 By diplomatic notes dated 22 March 1999, the contracting parties agreed to extend this BIT to the Bailiwicks of Jersey and Guernsey and the Isle of Man.

    36 Recourse may be had to arbitration only if the dispute concerns compensation for losses owing to war or other armed conflict, a state of emergency or civil disturbance; expropriation; or breach of the obligation to allow free repatriation of investments and returns.

    37 By diplomatic notes dated 21 June 1999, the contracting parties agreed to extend this BIT to the Bailiwicks of Jersey and Guernsey and the Isle of Man.

    38 By diplomatic notes, the contracting parties agreed to extend this BIT to the Bailiwicks of Jersey and Guernsey and the Isle of Man (notes dated 13 January 1978), and to the Turks and Caicos Islands (notes dated 7 March 1986).

    39 By diplomatic notes dated 14 January 1981, the contracting parties agreed to extend this BIT to the Bailiwicks of Jersey and Guernsey and the Isle of Man.

    40 By diplomatic notes dated 21 November 2001, the contracting parties agreed to extend this BIT to the Bailiwicks of Jersey and Guernsey and the Isle of Man.

    41 By diplomatic notes, the contracting parties agreed to extend this BIT to the Bailiwicks of Jersey and Guernsey and the Isle of Man (notes dated 27 December 1979), to Hong Kong (notes dated 28 February 1983), and to the Turks and Caicos Islands (notes dated 22 August 1986).

    42 By diplomatic notes dated 13 January 1994, the contracting parties agreed to extend this BIT to the Bailiwicks of Jersey and Guernsey and the Isle of Man.

    43 By diplomatic notes dated 23 December 1992, the contracting parties agreed to extend this BIT to Bermuda, Gibraltar, the Bailiwicks of Jersey and Guernsey, the Isle of Man and the Turks and Caicos Islands.

    44 By diplomatic notes dated 17 June 1999, the contracting parties agreed to extend this BIT to the Bailiwicks of Jersey and Guernsey and the Isle of Man.

    45 Recourse may be had to local courts only following negotiations with the host State.

    46 Recourse may be had to arbitration only if the Investor has commenced proceedings before the relevant local court / administrative tribunal of the host State and, after 18 months have passed following the commencement of those proceedings, no final decision has been rendered or the Investor disputes such final decision.

    47 By diplomatic notes dated 15 November 1999, the contracting parties agreed to extend this BIT to the Bailiwicks of Jersey and Guernsey and the Isle of Man.

    48 By diplomatic notes dated 9 June 1985, the contracting parties agreed to extend this BIT to Hong Kong, the Bailiwicks of Jersey and Guernsey and the Isle of Man.

    49 The ECT establishes a multilateral framework for cross-border cooperation in the energy industry. The treaty covers all aspects of commercial energy activities including trade, transit, investments and energy efficiency.

    In addition to the United Kingdom, the countries that have ratified the ECT are: Afghanistan, Albania, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, the European Union, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Japan, Kazakhstan, Kyrgyzstan, Latvia, Liechtenstein, Lithuania, Luxemburg, Malta, Moldova, Mongolia, Montenegro, The Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, Switzerland, Tajikistan, The Former Yugoslav Republic of Macedonia, Turkey, Turkmenistan, Ukraine and Uzbekistan.

    States in which ratification is still pending are: Australia, Belarus and Norway. On 20 August 2009, the Russian Federation has officially informed the Depository that it did not intend to become a contracting party to the ECT and the Protocol on Energy Efficiency and Related Environmental Aspects. In accordance with article 45(3(a)) of the ECT, such notification results in Russia’s termination of its provisional application of the ECT.

    50 The national treatment and MFN obligations do not apply to the protection of intellectual property.

    51 The contracting parties listed in Annex IA to the ECT have withheld unconditional consent to arbitrate disputes arising under the last sentence of article 10(1) of the ECT (the umbrella clause).

    Answer contributed by Audley Sheppard, Christina Cathey Schuetz and Audley Sheppard QC

    Get unlimited access to all Global Arbitration Review content