Investors rights under Investment Treaties and recourse to Investment Treaty Arbitration. A safe heaven?

Abstract

Both large and small scale investments made in foreign territories are subject to many risks especially when investing in states with high levels of legal and regulatory risk or political concerns; which often makes it a matter of paramount importance for international companies seeking to enter certain developing or less developed nations. At such times, investors should be particularly concerned about the legal safeguards that are made available to them during the lifespan of their respective investments. Bilateral and multilateral investment treaties (“BITs”, “MITs”) have assumed an important role as instruments aimed at overcoming these challenges and reduce the risks of government intervention, known as expropriation in its highest form.

This paper will therefore discuss some of the important protections available to investors in investment treaties i.e. BITs and MITs in relation to investment treaty arbitration as a method to solve international disputes particularly those in the energy sector.

List of Abbreviations

BITs – Bilateral Investment Treaties

MITs – Multilateral Investment Treaties

ECT – Energy Charter Treaty

NAFTA – North American Free Trade Agreement

ASEAN – Association of Southeast Asian Nations

ICSID – International Centre for Settlement of Investment Dispute

ICDR – International Centre for Dispute Resolution

ICC – International Chamber of Commerce

LCIA – London Court of International Arbitration

FTA – Free Trade Agreements

NT – National Treatment

MFN – Most Favored Nation treatment

FET – Fair and Equitable treatment

WTO – World Trade Organization

IIA’s – International Investment Agreements

PTIA’s – Preferential Trade Investment Agreements

UNCITRAL – United Nations Commission on International Trade Law

UNCTAD- United Nations Conference on Trade and Development

OECD- Organization for Economic Co-operation and Development

1.0 Introduction

It is only fair to start this essay by defining some of the key concepts or terms familiar or common to investment treaty to have a broader understanding or general overview when discussing the protections available to investors without concentrating on a single particular BIT or MIT.

(i)                Investment

First and foremost, an investment may be defined in economic terms as the creation of capital or goods capable of producing other goods or services. For an example, an asset acquired today with a view that it will provide income, yield dividends in the future or gain higher resale value may categorically be deemed as an investment.[1] It must be noted though that due attention has been given to the capital intensity of an investment, like infrastructure projects, energy exploration and or production when we talk of investment in relation to protections available under investment treaties. Which is not always the right thing to do.[2] Most treaties tend to protect various kinds of investments made by foreign entities or nationals to a particular sovereign foreign nation, these includes investment in movable and immovable property, shares and interests in companies, claims to money or to any performance under contract having financial value, intellectual property rights, including goodwill and know-how, and business concessions conferred by law or under contract.[3]  

(ii)              Investor

Henceforth, an investor may be defined as any person, group of individuals, partners or those incorporated in a company responsible for making such investments. It should be noted that Investment treaties do put some qualifications for an investor to rely upon protections offered under a particular investment. The term usually used is ‘qualified or protected investor’ under such a treaty.[4] The qualifications or conditions commonly referred to here may range from nationality of the investor, amount of capital invested, kind of shareholding structure in cases of companies and the number of shares thereto and so on, all depending on a concerned investment treaty.

(iii)            Investment Treaties

Now, Investment treaties are broadly defined as agreements between two or more states to protect the investments by offering some form of standard guarantees and legal redress for one state’s failure to fulfill its part of the agreement, made between or among people and/or organization in their respective countries.[5] Most common forms of investment treaties are the Bilateral Investment Treaties (BITs) and Multilateral Investment Treaties (MITs), the former entailing an agreement between two states and the later between more than two states. An example of a BIT could be that of US- Argentina signed November 14th 1991 and entered into force on October 20th, 1994.[6] While the Energy Charter Treaty (ECT), which came into force in April, 1998 after signing the legally binding treaty in Lisbon in December of 1994 could be used as an example of an MIT.[7] Other MITs include the North America Free Trade Agreement (NAFTA), Association of Southeast Asian Nations (ASEAN) and such. There are currently over 2,500 BIT’s in force.[8] Free trade Agreements (FTA’s) have been regarded at times by some scholars as one of the forms of MIT. Under investment treaties rights and obligations are exchangeable protecting both investments of investors from each state in the territory of the other state, therefore utmost care must be put in structuring these treaties given their imperative importance in international transactions.

(iv)            Investment treaty arbitration

Investment treaty arbitration can be said to be a tool to solve investment dispute arising out of a relationship between a foreign investor and a state hosting the investment. A rather creative and peculiar feature of investment arbitration is the fact that a private foreign investor may directly sue a host government (investor-state arbitration) under an arbitration forum agreed to in the treaty without having to exhaust the local remedies, as against a rather orthodox approach where only states were allowed to approach these arbitration forums, that is state to state arbitration or company to company arbitration under the more general international commercial arbitration.[9] There are various kinds of arbitration forums/institutes through which investment disputes may be referred to, some are ad hoc i.e. to be agreed upon when a dispute arises while others are embodied within an investment treaty as a de facto investment arbitration body to deal with disputes arising out of that treaty. These forums include the likes of International Centre for Settlement of Investment Disputes (ICSID) under the auspices of the World Bank, International Centre for Dispute Resolution (ICDR), International Chamber of Commerce (ICC), London Court of International Arbitration (LCIA) ; each with their own procedures and rules.[10]

2.0 Protections available under Investment Treaties

In this chapter, we are going to have a look at different kinds of protections available to investors common in a variety of international investment treaties, again without concentrating on one particular treaty. These protections have evolved with time to cover many areas of potential disputes in international investments in an effort to provide the much needed safer and secured investment climate internationally. The protections range from expropriation, fair and equitable treatment, full protection and security, no discrimination, national treatment (NT), most favored nation treatment (MFN), umbrella clauses and free transfers as here under discussed.  

(i)                No Expropriation without compensation

Expropriation may first of all be taken to mean an act directly or indirectly, of taking privately owned property by a national government to be used for the benefit of the public.[11] Under principles of customary international law, expropriation is forbidden unless certain conditions are met or fulfilled. These include the following:-

-         The measure is for a public purpose

-         It is non-discriminatory

-         Done in line with applicable laws and due process

-         Full, prompt and fair compensation is paid[12]

As explained above, Expropriation may be direct or indirect and as matter of great concern leading to a number of scholarly debates is what acts of government may be deemed as constituting an act of expropriation? To this end several concepts have evolved in mature legal regimes supported by important precedents on the issue.

(a)   Direct expropriation

This entails direct and actual taking of property by deliberate government action resulting into total or almost loss of property belonging to an investor necessary to keep the investment alive. It may be done by transferring of investors assets in a certain industry or sector into national ownership i.e. nationalization or by simply targeting specific assets frustrating the entire investment (expropriation).[13]

(b)  Indirect Expropriation

This literally entails a government action that although it does not involve directly taking possession of an investors property, but it aims at depriving the said investment of its full benefits and ultimately affecting the investors right to enjoy the investment thereon. This category is further divided into two sub categories namely; creeping expropriation and regulatory expropriation.[14] The former consisting of a series of acts that individually do not amount to expropriation but, when put together will show an indirect intention of harming the economic value of the said investment of an investor in that particular sector/industry.[15] While the later consist of simply an act of the state in enacting laws, policies and regulations that are aimed at depriving the investment of realizing its full potential. Most common laws or rules affecting international investment are taxes, environmental or those prohibiting or restricting importation of certain goods and services.[16] It must be said now that this is perhaps a very difficult claim or protection to rely on just because every sovereign state has a right to enact laws in their countries, a foreign investor must therefore be able to prove a bad intention of the state while enacting such laws, regulations and policies in order to win a claim under arbitration. These could range from a discriminatory application of such rule, law or regulation and so on. To overcome the challenge, most treaties make reference to specific investment contracts where stabilization and renegotiation clauses are introduced to guard against an economic devaluation of the project that might result from an unforeseen change of law, rule, policy or regulation affecting the said investment.  

(ii)              Fair and equitable treatment (FET)

In this protection found in almost all investment treaties, investors/ investments ought to be treated fairly and equitably. It is an open category that includes upholding legitimate expectations, the rule of law and good faith etc. This protection is considered by many investors to be a key feature of protections available under investment treaties also known as a ‘catch-all’ duty on the state to investors.[17] Fair and equitable treatment (FET), is applied in a very peculiar way largely depending on the wording of the treaty itself despite its broad interpretation. Some treaties correlate it with the international law standard treatment of foreign nationals or entities as compared to those that are specifically expressed in the treaty which more often than not tend to provide more protection to investors than otherwise.

The broadness of the scope of this protection begs one question, what acts or omissions by a host state signatory to an investment treaty may be deemed as contrary to FET? The answer to this is difficult one since every arbitral tribunal has come up with different interpretations of the protection given a particular set of facts present in disputes before them, it is fair to comment though that all interpretations despite their  structural and wording differences aim to achieve one thing which is equitably and fair treatment of investment. In a dispute involving Genin and Estonia, the arbitral tribunal held it to be, “acts showing willfully neglect of duty, an extreme insufficiency of action falling far below international standards, subjective bad faith or a willfully disregard of due process”.[18]   

(iii)            Full protection and security

Host states under this protection are obliged to ensure the full protection and security in the territory of investments made by investors of the other contracting state. In this regard, vigilance and due diligence are of paramount importance,[19] the debate or conflicting opinions regarding the issue as to whether the protection covers physical security only or extends to intangible or rather legal rights is an important one to take note of when discussing this protection under investment treaties.

The  standard  includes,  in  this  manner,  an  obligation  actively  to  create  a  framework that grants security.  Although the standard has been developed in the context of physical security, some tribunals have also included protection concerning legal security.  In this last respect, the standard becomes closely connected with the notion of fair and equitable treatment. Some have even found it necessary to connect more than just two protections or standards under article 10 of the ECT,[20] Professor Schreuer notes  that the tribunal in Petrobart v.  The Kyrgyz Republic, a case decided under the ECT opted for subsuming all standards under the purview of fair and equitable treatment.  The tribunal in Plama vs. Bulgaria also agrees that the protections under article 10 of the ECT are closely inter related though capable of being defined autonomously.[21]

In totality, FET provision or protection may be summed up to no longer consist of only abuses of government power but to any open and intended use of state machinery that does not meet the requirements of good governance. This, as briefly seen above, may consist of any lapses on transparency, investors legitimate expectations, freedom from coercion and harassment, good faith, legal due process and such. Consideration must also be put on representations made by a host nation and whether the same has been heavily riled upon by investor on deciding to invest in that country. Host countries with less mature legal and regulatory regimes especially those in less developed parts of the world are most vulnerable to act contrary to this protection unknowingly.

(iv)            No discrimination

The standard of non-discrimination generally imposes a duty on states, party to investment treaties not to adopt measures that discriminate investments based on type, industry, nationality. With this kind of protection, investors are guarded from state acts aims at discriminating their investments in form of rules, policies, regulations or laws.[22] There is also an interrelation between this protection and those of national treatment (NT) and most favored nation treatment (MFN) to be discussed later on in this essay; as it also talks against discrimination based on the nationality of the investor, i.e. favoring local/domestic investors over foreign investors or treating a particular investor or investment of a certain country better than treatment accorded to a similar investment by a third country.

This protection in a nutshell seeks to achieve a level playing field by all investors and of different kinds of investments among member countries to a particular investment treaty. As the saying goes, “Treating the like, like, and not unlike” an investor must have sufficient proof that his investment was discriminatory treated as against similar investment in a particular country by either being subjected to stricter regulatory oversight or indifferently taxed, administrative propriety and such. A host state must make endeavors in ensuring non-discriminatory treatment of investors in the same industry or sector by conforming to uniform best practices especially in tax matters and legal regulatory issues that these investments are subjected to. Investment treaties go far in ensuring that no one country member to a named treaty enjoys more privileges than others operating in a contracting state at a same industry or sector. It is at the end of the day a duty of the arbitral tribunal to decide whether an act or omission by a host state falls within the meaning of discrimination depending on the structure and wording of a particular investment treaty and factual arguments brought up by parties to a dispute.

The non-discrimination protection has extended to two more categories of protections namely the national treatment and the most favored nation treatment which will be discussed separately in this essay, though not per se an investment treaty, the World Trade Organization (WTO) agreements have dealt with these protections at length and many investment treaties have found their basis or resemblance from them. The International Investment agreements (IIA’s) and Preferential Trade Investment Agreements (PTIA’s) have done the same with much greater coverage of these two forms of protections available to foreign investors when investing in third countries, parties to these agreements.

(v)                 National treatment (NT)

One of the very common expectations provided to foreign investors while making decision to invest in a foreign country is that their investments will not be treated less favorably than like domestic investments; this is known as a ‘national treatment’ standard.[23] The treatment stems from legal, regulatory, administrative and other decision making; it must be present throughout the life of an investment i.e. from the incorporation of the business to the winding up of the same. A host state must at all times ensure that a foreign investor is not prejudiced in all matters investment.

The important issue to note under this protection is a comparison of treatment received by a foreign investor with that received by a domestic investor in the same field, under like and similar circumstances. Factors to be taken into account in determining whether the act or measure is contrary to the national treatment standard are;-

-         Whether the practical effect of the measure or act is to create a disproportionate benefit for nationals over non-nationals;

-         Whether the measure, on its face, appears to favor its nationals over non-nationals who are protected by relevant treaty.

The above factors are derived from the tribunal’s assertion in the case of S.D Myers vs. Canada.[24] One must comment though that interpretation of the NT provision should have a reference point in which one can use as a benchmark in making a comparison as to whether an act or measure is conforming or goes contrary to the standard set by a concerned investment treaty. Owning to this difficulty of having a reference point, most tribunals resort to case by case analysis in finding out about a de facto or de jure discriminatory practices alleged thereon by parties in a dispute.  

(vi)            Most favored nation treatment (MFN)

As a separate category of the non-discrimination standard or protection, most investment treaties impose a duty on a host state to accord to a foreign investor treatment not less favorable to a treatment accorded to another foreign investor operating in a host state.[25] The controversy surrounding this protection is whether the MFN principle is similar or closely connected to the NT standard, such that it loses its importance and what sort of treatment can be deemed as less favorable if compared to a treatment received by other investors in a host state contracting to a treaty, i.e. does the said treatment end with legal, regulatory or administrative decision or it extends to importation of for example and arbitration or dispute resolution clause otherwise not available to one state investor to another?[26] 

To overcome this perceived difficulty, most arbitral tribunals have again resorted to a case by case analysis; for example in Maffezini vs. Spain, an Argentine investor was allowed to use a more favorable procedural treatment available not in the Argentina-Spain BIT but in the Spain-Chile BIT provided that the tribunal deemed it not to have gone against public policy considerations and requirements.[27]

From the above dispute, we see that MFN clauses coordinate investment agreements by making sure that state parties to one treaty accords treatment no less favorable than the treatment they avail under other treaties in fields covered by the clause. MFN provisions have thus assumed a significant role as a tool of economic liberalization in the investment climate. In addition to giving the investors of all the parties reaping benefits from a country’s MFN clause the right, in like or similar situations, to treatment no less favorable than a country’s near or solid influential allies can negotiate on the issues the clause covers, MFN circumvent economic twist that would happen through more discriminatory state-by-state liberalization. Such a treatment may result from the execution or application of treaties, legislative or administrative acts of the nation and also by mere practice

(vii)          Umbrella clauses

Umbrella clauses, also known as “observance of undertakings” clauses, are famous in investment treaties and occur in numerous formulations. Under a more extensive form, each country commits to “observe any obligation it may have entered into with regard to investments.” general commercial contracts with the host state and investor are elevated to protection under a particular BIT.[28] Investors may rely on an umbrella clause against a state party act that goes contrary to general obligations enshrined under a treaty, but due to the possibility that the wording of an umbrella clause may differ from one treaty to another, so too is the scope and coverage of the protection that an investor may rely upon. In some cases, umbrella clauses when interpreted do not elevate a breach of contractual obligation into a treaty violation.

(viii)        Free transfers

Another guarantee common in investment treaties is the right of an investor to transfer funds and revenues to their home countries while doing business in a foreign host country.[29] It is a very pivotal block especially for developing and less developed countries in attracting foreign direct investment. Most investors will ensure that freedom to transfer capital and returns from their investment is guaranteed and at no times will the host government interfere with this right. Together with this right, investors will also want assurances with regard to freedom of movement of key personnel involved in the running of the business or investment like the Chief Executive Officer(s), Chief Financial Officer(s), technical directors if any and such. Matters of interest here are travel visas, work and residential permits and other ancillary paperwork necessary for their comfortable stay in the country an investment is undertaken.

Though not directly related to this protection, issues concerning double-taxation agreements between parties to an investment treaty are of paramount importance and are somehow connected to free transfer. Double taxation agreements are agreements between two countries or more that allow individuals, businesses or companies from paying the same tax twice, i.e. in a country where one’s business is located or carried out, to home country where funds or proceeds from the business are remitted.    

3.0 Commentary

The legal basis for initiating investment treaty claims is seen in the dispute settlement clause of modern investment treaties. A state by virtue of such a provision set forth its consent and adherence to international arbitration when settling of investment disputes thereto. Once the state submits its full consent, it becomes legally binding and as previously mentioned in this essay, an investor is at liberty to initiate claims/proceedings directly against a state at an agreed arbitral tribunal, without any further or additional qualifications.

Statistics shows us that most investor-state disputes are handled by the ICSID, especially those related to energy.[30] Apart from the ICSID arbitral tribunal, most investment treaties provide for an ad-hoc arbitration process to be guided by the United Nations Commission on International Trade Law (UNCITRAL) rules. A simple fact that ICSID has made it a bit easy for investors to enforce protections guaranteed by many investment treaties makes it a preferred choice for many in the industry, ICSID’s affiliation with the World Bank makes it more appealing to states particularly those that are either less developed or developing considering enormous influence the World Bank has on their respective economies.

Whether investment treaties and recourse to investment treaty arbitration does much to protect foreign investments or not is perhaps a question that one should be asking at this point of the essay. There could not be a straight forward answer to this, but the discussion surrounding the issue has always been about many things, the perceived difficulties in enforcing an award, the complex nature of the investment arbitration procedure, including time taken and costs involved, also the debate on just how much international arbitration has encroached on national courts and other local tribunals role in solving disputes arising in their jurisdiction. Admittedly, enforcing an award is not as easy as it may sound, and when slightly mishandled, it could lead to poor international relations between countries involved and raised geopolitical concerns and tensions let alone the fact that it may negatively affect investment climate of a host state when it fails to honor the award. Furthermore, one has to affirmatively assert that, gone are the days where arbitration was seen as a cheap, quick and easy way to solve disputes because the truth is actually the vice-versa, international investment disputes are expensive, time consuming and highly complex. An argument that refereeing disputes to international arbitral tribunals takes away a countries sovereignty in a sense that national courts are deprived of the role as de jure organs for solving disputes in a respective jurisdiction holds no water anymore owning to the technical nature of the investments and the stakes involved in terms of capital invested into such projects at the center of the dispute; hence it will be a difficult task and almost impossible one to find an investor who will agree to subject their investments at the hands of the national courts or local tribunals which to say the least lacks the necessary skills and expertise to solve the disputes not to mention the time it may take to handle such disputes.

4.0 Conclusion   

Protections available under various investment treaties and recourse to investment treaty arbitration have become matters of paramount importance in international investment law and therefore crucial to all stakeholders involved i.e. state parties to these investment treaties (state hosting investment), investors both foreign and local and arbitration practitioners (international investment arbitrators) . Investment treaties vis-à-vis investment arbitration together provides for a pool of standard guarantees availed to international investors. Thus a clear understanding of these protections especially while drafting and structuring them may prove to be the difference on how well disputes will be handled when they occur as they usually do. As my course lecturer, Miss Tuuli Timonen once said in class, “preparing a good dispute resolution or an arbitration clause is like preparing for a divorce just before getting married” most people overlook them with excitement to start business, usually clouding their judgments, the same applies to proper structuring of these protections.

Conclusively, four key points for any investor operating outside their national borders or considering doing so should bear in mind, one, whether its investments qualify for BIT or MIT protection, two, utmost care in structuring its investments appropriately, three, be made aware legally of what protections and guarantees it can expect and lastly understand how to bring forward or initiate investment arbitration proceedings to protect and enforce its rights.

5.0 Bibliography / References

[1] Investment defined, available at https://www.businessdictionary.com/definition/investment.html (accessed in November, 2015)

[2] M. Mcilwrath & J. Savage, International Arbitration and Mediation, A practical Guide @ Kluwer Law International, 2010; ICSID and Investment Treaty Arbitration, available at www.kluwerarbitration.com Pg. 373

[3] Ibid

[4] M. Mcilwrath & J. Savage, International Arbitration and Mediation, A practical Guide @ Kluwer Law International, 2010; ICSID and Investment Treaty Arbitration, available at www.kluwerarbitration.com Pg. 372

[5] King & Wood Mallesons; Maximizing Investment Protection in Africa, the Role of Investment treaties and investment arbitration in Africa, article available at https://www.kwm.com/en/es/knowledge/insights/role-of-investment-treaties-and-investment-arbitration-in-africa-20150316 (accessed in November, 2015)

[6] United States Bilateral Investment Treaties, US Department of States; available at https://www.state.gov/e/eb/ifd/bit/117402.htm (accessed in November, 2015)

[7] The Energy Charter Treaty, available at https://www.energycharter.org/process/energy-charter-treaty-1994/energy-charter-treaty/ (accessed in November, 2015)

[8] T. Martin, Dispute Resolution in the International Energy Sector: an overview; Journal of World Energy Law and Business, 2011, Vol. 4, No. 4 Pg. 343 available at http//jwelb.oxfordjournals.org/ (accessed in November, 2015)     

[9] King & Wood Mallesons; Maximizing Investment Protection in Africa, the Role of Investment treaties and investment arbitration in Africa, article available at https://www.kwm.com/en/es/knowledge/insights/role-of-investment-treaties-and-investment-arbitration-in-africa-20150316 (accessed in November, 2015)

[10] T. Martin, Dispute Resolution in the International Energy Sector: an overview; Journal of World Energy Law and Business, 2011, Vol. 4, No. 4 Pg. 363 available at http//jwelb.oxfordjournals.org/ (accessed in November, 2015)    

[11] M. Mcilwrath & J. Savage, International Arbitration and Mediation, A practical Guide @ Kluwer Law International, 2010; ICSID and Investment Treaty Arbitration, available at www.kluwerarbitration.com Pg. 380

[12] United Nations Conference on Trade and Development (UNCTAD): Series on International Investment Policies for Development; Investor-State disputes arising out of Investment treaties: A review, New York and Geneva, 2005; available at https://unctad.org/en/Docs/iteiit20054_en.pdf (accessed in November, 2015) Pg. 41-42

[13] Ibid

[14] Ibid

[15] United Nations Conference on Trade and Development (UNCTAD): Series on Issues of International Investment Agreements II; New York and Geneva, 2012; available at https://unctad.org/en/Docs/unctaddiaeia2011d7_en.pdf (accessed in November, 2015) Pg. 6

[16] Ibid; Pg. 7

[17] M. Mcilwrath & J. Savage, International Arbitration and Mediation, A practical Guide @ Kluwer Law International, 2010; ICSID and Investment Treaty Arbitration, available at www.kluwerarbitration.com Pg. 377

[18] United Nations Conference on Trade and Development (UNCTAD): Series on International Investment Policies for Development; Investor-State disputes arising out of Investment treaties: A review, New York and Geneva, 2005; available at https://unctad.org/en/Docs/iteiit20054_en.pdf (accessed in November, 2015) Pg. 38

[19] M. Mcilwrath & J. Savage, International Arbitration and Mediation, A practical Guide @ Kluwer Law International, 2010; ICSID and Investment Treaty Arbitration, available at www.kluwerarbitration.com Pg. 379

[20] Article 10(1) of the ECT; Each Contracting Party shall, in accordance with the provisions of this Treaty, encourage and create stable, equitable, favourable and transparent conditions for Investors of other Contracting Parties to make Investments in its Area. Such conditions shall include a commitment to accord at all times to Investments of Investors of other Contracting Parties fair and equitable treatment. Such Investments shall also enjoy the most constant protection and security and no Contracting Party shall in any way impair by unreasonable or discriminatory measures their management, maintenance, use, enjoyment or disposal. In no case shall such Investments be accorded treatment less favourable than that required by international law, including treaty obligations. 20 Each Contracting Party shall observe any obligations it has entered into with an Investor or an Investment of an Investor of any other Contracting Party. Available at https://www.ena.lt/pdfai/Treaty.pdf (accessed in November, 2015)

[21] Plama Consortium Limited vs. Republic of Bulgaria, ICSID case no. AB 03/24, Award: available at https://www.italaw.com/documents/PlamaBulgariaAward.pdf (accessed in November, 2015)

[22] King & Wood Mallesons; Maximizing Investment Protection in Africa, the Role of Investment treaties and investment arbitration in Africa, article available at https://www.kwm.com/en/es/knowledge/insights/role-of-investment-treaties-and-investment-arbitration-in-africa-20150316 (accessed in November, 2015)

[23] R. Dolzer; Making the Most of International Investment Agreements, National Treatment: New Developments, 12/12/2005 Paris, (ICSID,OECD & UNCTAD), available at https://www.oecd.org/investment/internationalinvestmentagreements/36055356.pdf (accessed in November, 2015)

[24] Ibid

[25] OECD Working papers on International Investment 2004/02; Most Favoured Nation Treatment in International Investment Law, available at https://www.oecd.org/daf/inv/investment-policy/WP-2004_2.pdf (accessed in November, 2015) 

[26] M. Mcilwrath & J. Savage, International Arbitration and Mediation, A practical Guide @ Kluwer Law International, 2010; ICSID and Investment Treaty Arbitration, available at www.kluwerarbitration.com Pg. 378

[27] United Nations Conference on Trade and Development (UNCTAD): Series on International Investment Policies for Development; Investor-State disputes arising out of Investment treaties: A review, New York and Geneva, 2005; available at https://unctad.org/en/Docs/iteiit20054_en.pdf (accessed in November, 2015) Pg. 35

[28] P. Grane, Arnold and Porter LLP; Kluwer Arbitration blog: Umbrella Clause Decisions: The Class of 2012 and a Remapping of the Jurisprudence 17/01/2013 available at https://kluwerarbitrationblog.com/2013/01/17/umbrella-clause-decisions-the-class-of-2012-and-a-remapping-of-the-jurisprudence/ (accessed in November, 2015)

[29] Marie-France Houde, Novel Features in Recent OECD Bilateral Investment Treaties; article available at https://www.oecd.org/investment/internationalinvestmentagreements/40072428.pdf Pg. 163 (accessed in November, 2015)

[30] The ICSID Caseload statistics- (Issue 2015-1); available at https://icsid.worldbank.org/apps/ICSIDWEB/resources/Documents/ICSID%20Web%20Stats%202015-1%20(English)%20(2)_Redacted.pdf  (accessed in November, 2015)

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