International Construction Law Review

Chantal-Aimée Doerries KC; Professor Douglas Jones AO

Document

“BUILDING BRIDGES” IN INVESTOR-STATE ARBITRATION: INTERNATIONAL CONSTRUCTION PROJECTS AND THE PROTECTION OF CONTRACTUAL OBLIGATIONS UNDER BILATERAL INVESTMENT TREATIES IN A POST-BREXIT WORLD

Kieran Fano*

Senior Associate, Goodman Derrick LLP, email: kfano@gdlaw.co.uk

ABSTRACT

The object of this paper is to examine the protection of contractual rights under bilateral investment treaties in the context of international construction projects. This paper is divided into two distinct parts. In particular, the first part of this paper considers the conceptual distinction between contract and treaty claims and examines how construction related claims will be characterised by considering the decisions of investment treaty tribunals. This paper goes on to examine umbrella clauses and the extent to which they may transform contractual claims into treaty claims while seeking to establish its limits, particularly in the context of claims against state entities and indirect claims by investors.

Investment treaties have received increasing attention in the wake of Brexit and the expectation is that investment treaties will be a significant feature of the UK’s future economic policy.

Investor-state dispute settlement provisions of investment treaties typically provide for disputes to be submitted to ICSID under the Washington Convention 1965. This confers benefits related to the recognition and enforcement of ICSID awards and such disputes are subject to international law which may provide remedies in circumstances where there is no applicable remedy in municipal law. Perhaps most significantly, the ICSID Convention provides for the recognition and enforcement of ICSID awards in the same way they would a final judgment of local courts.

It is, in part, for these reasons that international projects may be structured in order to benefit from the protections of an applicable investment treaty. This is in the context where contractors on the international stage will be typically faced with the imposition of local laws and the exclusive jurisdiction of local courts, which may be susceptible to delays, legislative change

* This article is based on a Dissertation submitted in part fulfi lment of an MSc degree in Construction Law and Dispute Resolution, King’s College London for which the author was awarded the he King’s College Construction Law Association prize (for best performance in second year examinations), and the Arbitration Club, Phillip Ranner prize (for best examination script in the module for arbitration and dispute resolution).

Pt 3] Joinder of Nonsignatories in International Arbitration

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