Originally from Investor-State Arbitration--Lessons for Asia

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What can the United Kingdom contribute to this conference on the modern practice of investment arbitration in Asia? It would seem, at first sight, very little.

As to experience of investment arbitration, when the British Foreign Office was recently consulted in regard to possible reforms to investor-state arbitration under the UNCITRAL Arbitration Rules (currently under review in UNCITRAL), its legal advisers disclosed, sadly, that the United Kingdom had never been sued as a respondent state in any arbitration under any of the United Kingdom’s many bilateral investment treaties.

Of course, private investors from the United Kingdom have often invoked investor-state protections against host states under BITs agreed between these host states with the United Kingdom, without the latter being a party to the investment arbitration. In the last twenty years, as publicly reported, United Kingdom investors have secured at least six arbitration awards based upon such United Kingdom BITs. Of these, two were awards against Asian host states; and the second as recently as last year was made by a sole arbitrator from Asia.1

However, in recent months a foreign investor from Asia has at last started arbitration proceedings against the United Kingdom under a BIT; and this slender historical first experience of investment arbitration apparently qualifies me to address you today from the perspective of the United Kingdom.