Investor-State Dispute Settlement Issues

Roman Zykov spoke on the trends in newly concluded investment treaties and cases related to Russia and the CIS in the conference organized by UNCITRAL and Belarus Ministry of Foreign Affairs in Minsk.

He highlited that the investments protecting regulations fall within four groups of documents

  • National Investment Protection Legislature
  • Bilateral Investment Treaties
  • Regional Investment Treaties (Former USSR states)
  • International Investment Treaties

1. Russian Bilateral investment Treaties (BITs) evolved from generation 1 to 3 in the past 30 years

Generation 1: USSR BITs

  • Model USSR BIT (1987)
  • limits jurisdiction of tribunals to disputes concerning the amount of compensation
  • Russia – Spain (1989) , UK (1989), Germany (1993), etc.
Generation 2: Russian BITs 1990 - present
  • Model Russian BIT (2001)
  • a wide investor-state arbitration clause
  • Russia – Sweden (1995), China (2006), etc.
Generation 3: Russian BITs from 2016
  • The New Russian Model BIT 2016
  • Institutional arbitration
  • Ad hoc arbitration with detailed procedure

2. Regional Investment Treaties (CIS)
  • Convention for the Protection of Investors’ Rights (1997, Moscow)
    • National courts, CIS Economic Court, international arbitration
  • EurAsEc Convention for the Promotion and Mutual Protection of Investments (2008)
    • National courts, National Chamber of Commerce arbitration, ad hoc UNCITRAL, ICSID or ICSID Additional Facility
  • Treaty on the Eurasian Economic Union (2014)
    • National courts, National Chamber of Commerce arbitration, ad hoc UNCITRAL, ICSID or ICSID Additional Facility

3. International Investment Treaties
  • ICSID Convention (1965)Russia, Tajikistan and Kyrgyzstan are not parties
  • ICSID Additional Facility Rules, Non-signatories may bring claims
  • Energy Charter Treaty (1994), Russia is not a party, however there is a question of provisional application
  • New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958), Turkmenistan is not a party