BILATERAL INVESTMENT TREATY CLAIMS
By Khawar Qureshi QC
ISBN: 978 0 85490 194 4
WILDY, SIMMONDS & HILL PUBLISHING
Wildy’s Legal Handbook Series
A PRACTICAL SHORT STATEMENT ON THE ESSENTIALS OF BILATERAL INVESTMENT TREATY (BIT) CLAIMS
An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers
The author, Khawar Qureshi QC, begins this excellent short work with the following statement: “there has been a huge increase in Investment Treaty based arbitration claims against States in recent years”. To fill the gap, Qureshi has written this title in the Wildy’s Legal Handbook series. BIT disputes are continuing to expand rapidly as a high-profile area of international litigation so the appearance of the handbook now is most welcome.
“Bilateral Investment Treaty Claims” is specifically for practitioners and State legal advisers who need to identify and understand the key elements which underpin BIT based claims by reference to the leading arbitral decisions from ICSID and UNCITRAL Investment Treaty Tribunals.
Christoph Schreuer and Rudolf Dolzer, writing in the Foreword say that their significance is usually discussed in terms of the impact on investment streams and thus economic development. They go on to say that “a frequently overlooked aspect of BITs is their effect on international relations”.
It is therefore to the international aspect that this book dwells. Diplomatic protection “by the investor’s State of nationality” (a convenient way of dealing with a jurisdiction issue) has been exercised because of often “ill-defined principles” and was therefore a frequent source of irritation and discord.
However, with the creation of legal rules in a hitherto largely unregulated area, BITs have “depoliticized disputes and brought a measure of legal security”. Schreuer and Dolzer conclude that “in the presence of objective treaty standards supported by an effective investor-State dispute settlement mechanism, the host state and the investor’s home State are less likely to be drawn into investment disputes.”
They also comment that the handbook is a “most useful manual for practitioners and students alike. It offers a practice-oriented review of the most important features of BITs and their application by tribunals”. Hopefully, many readers will be familiar with BITs so the initial four chapters of the work give a useful background to BITs and their key features plus a checklist for practitioners contemplating or involved in a claim under a BIT.
The penultimate chapter describes additional considerations, citing leading case law dealing with the scope for preliminary measures in BIT cases, abuse of process and illegality and there are two excellent and detailed annexes. The author has generously donated all royalties to the Bar Benevolent Fund.
It is a most useful new manual from Wildy for both students and practitioners alike. What we particularly liked was the “practice-orientated overview” of the most important features of BITs and their application by tribunals to give us a refreshing insight into this developing area of international law.
The current law is as stated at January 2016