This chapter deals with treaty clauses which stipulate that the host State shall observe the undertakings which it has assumed towards a protected investor, including but not limited to any obligations which the host State has assumed under an investor–State contract. We will explore the different interpretations given to various umbrella clauses by investment tribunals. These interpretations are varied and inconsistent. There is as yet no real consensus on the precise scope and even the nature or character of the protection conferred by umbrella treaty clauses. Section 1 explains what umbrella clauses are and the lurking presence of the theory of internationalised contracts explained earlier in Chapter 2 of this book. Section 2 contains excerpts of some of the main arbitral awards. They show at least four different views adopted by tribunals regarding umbrella clauses. Section 3 contains illustrations of contemporary treaty umbrella clauses. Some ways in which tribunals have sought to limit the potentially very wide scope and effect of umbrella clauses are discussed in the Conclusion.

This chapter deals with how costs and fees are viewed and how they are awarded by arbitral tribunals in international investment arbitration. Costs comprise both arbitration costs, meaning the cost of the tribunal including any institutional fees, and also legal costs. The latter can be substantial and may form a critical part of the relief sought by claimants. Such costs are not sought only by winning claimants – they may also be sought from losing claimants by winning respondent host States. Section 1 introduces counsel’s concerns, while Section 2 describes the two main types of costs in international investment arbitration. Section 3 discusses the main considerations that guide tribunals in awarding costs. Sections 4 and 5 address related concerns of contemporary interest in this rapidly evolving area – the ever-growing prominence and importance of the ‘loser-pays’ principle, and the availability of security for costs as a preliminary measure. The discussion on security for costs overlaps with the discussion in Chapter 8 on provisional measures, but is considered in greater detail in the present chapter. Although third-party funding is mentioned in passing for its relevance to tribunal cost allocation, a more general discussion of alternative fee arrangements and legal expenses insurance, such as after-the-event insurance, which seeks to protect against adverse costs orders, fall outside our present focus. For readers interested in the broader debate on alternative fee arrangements in international investment arbitration, such as contingent fees and third-party funding, an item is included in the suggestions for further reading.

Although some histories of the conflict between Zionists/Israelis and Palestinians call the totality of the struggle the “Arab-Israeli conflict,” the term more properly refers to a fifty-year period between the establishment of the State of Israel in 1948 and the Oslo Accords of 1993, when the goal of much of the world was to make peace between Israel and its neighbors and the question of the Palestinians seemingly dropped by the wayside. From 1948 to 1967, the conflict settled into a stalemate, with Arab states refusing to recognize Israel and Israel consolidating the state at home. That stalemate was broken with the 1967 war, which created a dynamic bargaining proposition: land-for-peace. With the exception of an Israel-Egypt peace treaty in 1979, whereby Israel withdrew from the Sinai, that proposition proved elusive for a variety of reasons, perhaps the most significant of which was Israeli settlement policies.

This chapter addresses defences in investment protection law. Section 1 introduces the concept and delineates its boundaries. Section 2 discusses defences that are expressed or necessarily implicit in investment protection obligations, illustrated by the case study of indirect expropriation. Section 3 addresses defences that are drafted as exceptions. It discusses both the much-litigated non-precluded-measures clause in the US–Argentina Bilateral Investment Treaty (BIT) and general exceptions included in the newest generation of investment treaties. Section 4 considers circumstances precluding wrongfulness in law of State responsibility. It addresses in greater detail three circumstances that have played a role in the practice of investment arbitration: consent (Section 4.1), countermeasures (Section 4.2) and necessity (Section 4.3).

This chapter deals with investment contracts and their protection through internationalisation. Internationalisation refers to the conversion of contractual obligations to international obligations, so that every breach of an investment contract amounts to a violation of international law. Section 1 excerpts the main arbitral awards on investment contract internationalisation, while Section 2 outlines the main objections to investment contract internationalisation. Section 3 addresses a subsidiary concern – different types of investment contracts and their respective characteristics.

The chapter looks at the geography of the territory west of the Jordan River, and describes how competing nationalist narratives –– Zionism and Palestinian nationalism –– have inscribed meaning not only in that geography, but in the pre-national history of the two “peoples” with rival claims to the land.

This chapter covers a preliminary issue that arises for consideration in investment arbitration. It can be read in conjunction with Chapter 8, which addresses another preliminary issue – the treatment of evidence. The resolution of preliminary issues should precede any attempt by an arbitral tribunal to fully evaluate the strength of each disputing party’s submissions on the merits. However, excepting applicable laws governing the dispute, guiding principles on the assessment of evidence are discussed by some arbitral tribunals, but not others. This chapter focuses on the sources and interplay of laws applicable to the substance and procedure of a claim. Section 1 deals with the lex causae, the law applicable to the substance of the dispute. Section 2 deals with the lex arbitri, the law governing the arbitral process. Section 3 deals with the lex loci arbitri, the law of the seat of arbitration.

In a decentralised dispute settlement system such as international investment arbitration, the choice of arbitrators and the ethical standards to which they can be held become crucial, both in systemic terms and for the resolution of particular disputes. Section 1 introduces the key figures in investment arbitration. Section 2 deals with the appointment process, considering in a comparative manner ICSID and non-ICSID arbitrations. Sections 3 and 4 address the process and substantive standards for challenging arbitrators in a similar manner. Section 5 addresses in more detail selected grounds of challenge. The connection between arbitrator conflicts and the proposal to replace investment treaty arbitration with a Multilateral Investment Court is discussed in Chapter 20 of this book.

This chapter discusses interim, provisional or conservatory measures which may be sought by the claimant in order to preserve the status quo pending the dispute’s resolution. Such relief may be sought from the tribunal, from national courts or both. Section 1 explains some of the special considerations which may apply in the case of an interim measure against a sovereign State or other investment dispute party which exercises sovereign powers. Should a tribunal order a sovereign State to halt criminal proceedings against the investor, for example? Should a tribunal order a sovereign not to move the investor’s money from a bank account in a certain location to another place, indeed more broadly from disposing of or dealing in any way with those assets? This section describes the power of the ICSID and other tribunals to grant – or in the curious language of the ICSID Convention, ‘recommend’ – such provisional measures. Section 2 uses a well-known English case to illustrate recourse to a national court where an ICSID arbitration is already underway. It draws the reader’s mind to the potential role of national courts, albeit using as its example an instance of national deference to the exclusive authority of an ICSID tribunal. Section 3 in turn discusses potential limits, be they legal or simply practical, to the types of measures which a tribunal might order. It discusses, in particular, the power of the tribunal to require security for costs (i.e. to assure the respondent that its legal costs will be met in the event that it prevails over the claimant), as well as a well-known line of awards concerning the circumstances in which a tribunal will seek to halt criminal proceedings against the claimant, at least while the arbitration is still in progress. Section 4 compares the test adopted by an ICSID tribunal to that of a well-known tribunal applying the UNCITRAL Arbitration Rules in evaluating requests for interim relief. Together, they offer the reader a sense of some key factors which will matter to tribunals. Perhaps there is already a good degree of consistency in the ICSID jurisprudence, without denying that tribunals will differ in their approach as an increasingly mature body of jurisprudence and opinion continues to develop.