Investment Treaty Arbitration: United Kingdom - England & Wales

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 20-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

Yes⁷

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

Eswatini (formerly Swaziland) (5 May 1995)⁴⁰

Yes

Yes

Yes

Yes

Yes

3 months

No

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

Kuwait

(signed 8 October 2009; not in force)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Kyrgyzstan
(18 June 1998)

Yes

Yes

Yes

Yes

Yes

3 months

No

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)²⁸

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)

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
(Entered into force 14 April 1988; terminated as at 22 November 2019, but 15-year sunset period)

Yes

Yes

Yes

Yes

Yes

3 months

No

Yes³³

Qatar

(Signed 18 September 2009; not in force)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Republic of Korea
(March 4 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

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

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)).

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’.

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.’

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).

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.

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.’

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.

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).

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’.

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.

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.

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

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

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

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.

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.

The Arbitration Act 1996.

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

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.
• It is possible that the European Commission could refer this case to the CJEU, under a provision in the withdrawal agreement that allows the EU to bring cases against the UK within four years of the end of the withdrawal period for historic breaches of EU law.
• At the time of writing, it appears that BITs between the UK and 11 EU countries remain in force. All of these BITs include an ISDS mechanism, though the ISDS mechanism in the UK–Hungary BIT only applies to expropriation claims. However, there is some uncertainty as to whether national courts in EU member states would enforce awards under EU-UK BITs, given the position in EU law post-Achmea.
• On 2 September 2021, the CJEU in Republic of Moldova v Komstroy (C‑741/19) held that as a matter of EU law, article 26 of the ECT was not applicable to intra-EU disputes. The judgment extended the CJEU's reasoning relating to BITs in Achmea to the ECT, which is a multilateral treaty.

The UK and EU signed a trade and cooperation agreement (TCA) on 30 December 2020. This applied provisionally from 1 January 2021, and entered into force on 1 May 2021. The TCA does not include an ISDS mechanism and does not deal with the issue of the EU-UK BITs.

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, the UK has negotiated continuity agreements with 67 countries. Some of these provide for ISDS, for example, the Cariform Trade Block FTA. Some do not provide for ISDS, for example, the Central America FTA.

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. The UK has signed three new trade agreements since leaving the EU.

The first, with Australia, was signed in December 2021 (not yet in force), following an agreement in principle in June 2021. This FTA does not include ISDS provisions.

The FTA with New Zealand was signed in February 2022 (not yet in force) and similarly does not contain ISDS provisions.

In June 2021, the UK also entered into formal negotiations to join the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), the investment chapter of which provides for ISDS.

Following Ukraine's unsuccessful application to set aside an enforcement order in PAO Tatneft v Ukraine [2018] EWHC 1797 (Comm) (discussed below), in PAO Tatneft v Ukraine [2020] EWHC 3161 (Comm), the Commercial Court dismissed a further application by Ukraine to refuse enforcement of an award under section 103(2) of the Arbitration Act 1996. Ukraine argued that the award dealt with a difference outside the scope of the arbitration agreement, namely the 'illegality argument' that the arbitration agreement only related to investments made in accordance with Ukrainian law, an argument which it did not raise in its earlier sovereign immunity application. Refusing the application, Sir Andrew Smith found that, on the facts, Ukraine could have raised the argument on its state immunity application and by not doing so, Tatneft had been unnecessarily vexed by litigation and oppressed by successive hearings in the same matter.

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 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 PAO 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 that 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 proceedings 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’.

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.

UK export finance overseas investment insurance

The Export Credits Guarantee Department (known operationally as 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 to UK exporters against non-payment by overseas buyers, guarantees for banks loans to buyers of goods and services from UK exporting companies and political risk insurance to local investors investing abroad. 

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.

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 (UK-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)

Cairn Energy PLC v. India, UNCITRAL, Award, 21 December 2020 (UK-India 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-Turkmenistan 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 B.V. 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 B.V. 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)

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

Medusa (Montenegro) Limited v. Montenegro, PCA Case No. 2015-39, Award, 17 July 2019 (UK-Serbia BIT)

Menzies Middle East and Africa S.A. 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)

Prenay Agarwal, Vinita Agarwal and Ritika Mehta v. Uruguay, UNCITRAL, initiated in 2017, Award, 6 August 2020 (UK–Uruguay BIT)

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)

South American Silver Limited v. The Plurinational State of Bolivia, PCA Case No. 2013-15, Award, 30 August 2018 (UK-Bolivia 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)

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)

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

Air BP v. Bolivia, UNCITRAL, initiated in 2010 (UK-Bolivia BIT)

Anglo American plc v. Republic of Colombia, ICSID Case No. ARB/21/31, initiated in June 2021 (UK-Colombia BIT)

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)

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

CB&I UK Limited v. Republic of Colombia, ICSID Case No. ARB/22/11, initiated in April 2022 (UK-Colombia BIT)

Christopher Jock Murdoch MacKenzie v. Hungary, ICSID Case No. ARB/21/66, initiated in December 2021 (UK-Hungary 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)

Congo Mining Ltd SARLU and Midus Holdings Limited v. Republic of Congo, ICSID Case No. ARB/21/58, initiated in December 2021 (UK-Republic of Congo BIT)

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

Durres and others v. Albania, ICSID Case No. ARB/20/37, initiated in 2020 (UK-Albania BIT)

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

Treaty)

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)

HSBC Latin American Holdings (UK) Limited v. Republic of El Salvador, ICSID Case No. ARB/21/46, initiated in September 2021 (UK-El Salvador 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)

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

SGO Corporation Limited v. Bolivarian Republic of Venezuela, ICSID Case No. ARB(AF)/22/2, initiated in June 2022 (UK-Venezuela 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 Jurisdictional 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)

World Natural Resources Ltd v. Republic of Congo, ICSID Case No. ARB/21/24, initiated in May 2021 (UK-Republic of Congo BIT)

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

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).

Astro and South Asia Entertainment v. India, UNCITRAL, Request for Arbitration, 2016 (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)

Darley Energy Plc v. Poland, UNCITRAL, initiated in 2016 (UK-Poland 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)

Gerald International Limited v. Republic of Sierra Leone, ICSID Case No. ARB/19/31, initiated in 2019. Order taking note of the discontinuance of the proceeding pursuant to ICSID Arbitration Rule 43(1), 28 January 2022 (UK-Sierra Leone 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)

Liberty v. Venezuela, ICSID Case No. ARB(AF)/20/3, initiated in 2020, Procedural Order No. 1 concerning suspension of proceedings, 21 June 2022 (UK-Venezuela BIT)

Nachingwea and others v. Tanzania, ICSID Case No. ARB/20/38, initiated in 2020 (UK-Tanzania BIT)

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

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. Order taking note of the discontinuance of the proceeding pursuant to ICSID Arbitration Rule 43(1), 31 May 2022 (UK-Tanzania BIT)

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

Petroceltic Holdings Limited and Petroceltic Resources Limited v. Arab Republic of Egypt, ICSID Case No. ARB/19/7, initiated in 2019 (UK-Egypt 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)

Shokat Mohammed Dalal v. United Arab Emirates, ICSID Case No. ARB/19/10, Procedural Order no.1, 21 November 2019. Order taking note of the discontinuance of the proceeding pursuant to ICSID Arbitration Rule 43(1), 23 April 2021 (UK-UAE BIT)

South32 v. Colombia, ICSID Case No. ARB/20/9, initiated in 2020 (UK-Colombia BIT)

Standard Chartered Bank v India, UNCTIRAL, 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)