Yas Banifatemi is a partner in Shearman & Sterling’s International Arbitration Group and leads the firm’s Public International Law Practice. Yas has represented multinational corporations, States and State-owned entities in over 50 international arbitration cases (with a focus on investment and oil & gas arbitrations). In particular, she is currently representing parties in 4 arbitrations brought under the Energy Charter Treaty, including the three arbitrations brought by the majority shareholders in Yukos Oil Company against the Russian Federation.
Initiating an arbitration against a State on the basis of an investment treaty assumes that the claiming party has ensured that it satisfies the qualifying conditions under the treaty, namely that it is a protected investor under the treaty, that its investment is protected under the treaty, and that the dispute is covered by the temporal application of the treaty. These are, respectively, the requirements ratione personae, ratione materiae and ratione temporis on the basis of which a respondent State may object to an arbitral tribunal’s jurisdiction and failing which the arbitration cannot proceed. The very first requirement, of course, is for the treaty to have come into force and to be binding on the host State.