Investor-State Arbitration Under NAFTA Chapter Eleven: The Case for Reforming the United States’ International Investment Law Policy - Chapter 12 - Investment Treaty Arbitration and International Law - Volume 16
In recent years, claims initiated by foreign investors against sovereign States before international arbitral tribunals have surged, reaching the staggering number of 1,190 by the end of the year 2021, with at least 68 investor-State disputes initiated during the year 2021 alone. Such claims were raised by foreign investors on the basis of international investment agreements (IIAs). These are agreements which aim at promoting cross-border investment flows and providing adequate and enforceable substantive protections between a foreign investor and the host country in which that investor operates.
Among the countries finding themselves defending against a variety of claims for breach of various treaty provisions, are both developed and developing nations, ranging from Spain—being the most frequent respondent State—to Libya and Mexico. Although the United States (U.S.) has shaped its international investment law policy with the goal of providing expansive rights to its foreign investors who are operating abroad—the U.S. being the most frequent home State of claimants in investor-State disputes —it is not immune to claims being brought against it by various foreign investors seeking to challenge various critical governmental measures aimed at combating climate change or protecting public health. No less than 2,646 IIAs have been concluded to date, with the U.S. having concluded 124 such IIAs, of which at least 89 are currently in force.