Several recent decisions by investment arbitration tribunals show that parties who are unable to obtain enforcement of a commercial arbitration award in local courts may still obtain compensation via investment treaties. Such compensation can consist of the full value of the original award plus interest and costs of the arbitration. In these cases, investors have argued among other things that the commercial award is a protected investment under the treaty, and that the treatment of that award by local courts violated that treaty. As discussed below, the success of those claims has depended on whether the facts of each case conform to certain key treaty provisions.
This study analyzes in detail the developments in this area as reflected in recent decisions by investment arbitration tribunals, and it draws practical lessons from those decisions for both investors and States. The study is structured as follows: Section II briefly summarizes relevant decisions by investment tribunals. Section III provides a detailed analysis of the relevant issues raised in these cases. It also notes trends in the jurisprudence where appropriate, and synthesizes the analysis into key lessons for users of international arbitration. Finally, Section IV puts all of these lessons in a broader and strategic context.