Originally from The American Review of International Arbitration (ARIA)

PREVIEW PAGE

Dealing with the Russian Federation’s invasion of Ukraine on a legal front can involve different strategies. Even though the primary role to obtain redress is thought to lie with the government authorities responsible for maintaining security, the rule of law, and the security order,  this should not discourage the wider legal community from considering other adjudicatory or quasi-judicial forums to remedy the violation of rights and interests of Ukrainian individuals and legal persons.

For arbitration practitioners, it is reasonable to first examine to what extent arbitration could be resorted to as a mechanism to seek and recover damages from the Russian Federation for adversely affected investments. A proven record of investor-state arbitration cases related to the protection of investments in occupied Crimea supports the belief that investment arbitration may be one of the most effective mechanisms to date in addressing violations conducted by the Russian Federation since 2014.

The question is whether the so-called “Crimean cases” —some of which have been already heard by arbitral tribunals and have been decided on in favor of investors (either on jurisdiction, or on the merits as well as jurisdiction)—may serve as a litmus test for the prospective endeavors of investors in suing the Russian Federation vis-à-vis property affected in the wake of the unlawful occupation of particular territories of Ukraine following the full-scale invasion in 2022. This article aims to address questions which point, in part, to jurisdictional issues prospective claimants might face with regard to the territory of protected investments