Lawyer Monthly - December 2021 Edition

Finally, the tribunal will hold a hearing. It may then require post hearing submissions in lieu of, or in addition to, closing arguments at the evidential hearing. Ultimately, the tribunal will take all of these elements into consideration during its deliberation and issue its award. On average, ICSID tribunals take around 14 months after the final hearing on the merits before issuing their award. Overall, from the request to arbitration to the final award, ICSID proceedings typically last around 3,5 years. What rules typically apply in investment arbitration? Most investment treaties will require compensation to be paid in the event an investment is being expropriated. Typically, investment treaties will also include provisions calling for the “fair and equitable treatment” and for “full and constant protection and security” of investments. They also commonly provide for the right of investors to repatriate funds derived from the capital and returns of their investment. The most protective treaties may also include additional substantive protections. They may require states to comply with their contractual undertakings as regards investment or require transparency of local rules and regulations, as well as prompt approval of administrative authorisations, or even the admission of investments into the country. What factors distinguish this from other forms of arbitration? The main difference lies in the legal framework in which the different arbitrations function. In commercial arbitration, the parties generally agree that a domestic law will apply to their dispute. National law plays a different role in investment arbitrations, where the dispute is primarily governed by the international treaty at stake. 60 WWW.LAWYER-MONTHLY.COM | DEC 2021 EXPERT INSIGHT The foreign investment is ruled by the laws of the host state, but states cannot, in principle, invoke their national laws to justify breaching their interna- tional obliga- tions under treaties That is not to say that the national laws of the host state play no role at all; the foreign investment is ruled by the laws of the host state, but states cannot, in principle, invoke their national laws to justify breaching their international obligations under treaties – not an easy balance to strike for international tribunals! Have you noted any significant trends in this area of law over the past year? One key trend is that states are increasingly using their drafting powers to remedy what they see as inappropriate treaty interpretations by arbitral tribunals by amending existing text or using different language in new treaties in order to address their concerns. It has become a lot more common for states to spell out in their treaties how certain obligations are to be construed, and what the extent of the protections afforded to foreign investors is. On a more practical level, the COVID-19 pandemic and the push