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Investment dispute settlement, latest statistics (updated as of 1 January 2017)

The United Nations Conference on Trade and Development (UNCTAD) has completed its regular semi-annual update of the Investment Dispute Settlement Navigator (updated as of 1 January 2017). In 2016, investors initiated 62 known investment cases pursuant to international investment agreements (IIAs). This number is lower than in the preceding year (74 cases in 2015), but higher than the 10-year average of 49 cases (2006-2015). The Energy Charter Treaty (ECT) continues to be the most frequently invoked investment agreement with 10 cases. Since 2001, when the first case invoking ECT was registered, the Energy Charter Secretariat tracked 101 publicly known investment arbitration cases where the ECT was invoked (sometimes together with a BIT). 

Information about the claims has been compiled on the basis of public sources, including specialized reporting services. As arbitrations can be kept confidential under certain circumstances, the actual number of disputes filed in this and previous years is likely to be higher. We welcome any additional information or clarifications on specific cases (legalaffairs@encharter.org).

Of all cases, 67 have been brought before The International Centre for Settlement of Investment Disputes (ICSID), 16 before the Stockholm Chamber of Commerce (SCC), 12 before ad hoc arbitration tribunals under the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL) tribunals and 6 before the Permanent Court of Arbitration (PCA) (applying UNCITRAL rules).

 

 

Of these, 60 are pending, 31 have been concluded by arbitral awards, 1 was discontinued, 1 was withdrawn and 8 more cases have been settled by the parties (including 4 consent awards, i.e. arbitral awards rendered by an arbitral tribunal to record a settlement agreement between the parties). 

In 8 cases the tribunal has denied jurisdiction, in 9 cases no breach of the ECT obligations was found, and in 2 cases the arbitral tribunal found a breach of the ECT obligations but no damages were awarded. In 11 cases the tribunal awarded damages to the investors (though some of the awards have been set aside pending appeal). Finally, in 3 additional cases a settlement agreement was embodied in an award. The Secretariat has no information on the final result in one un-published award.

 

Since 2013 the Energy Charter Secretariat has been actively promoting the use of good offices and mediation for the settlement of investment disputes under the ECT. In fact during the last years, the Secretariat has provided in several occasions its good offices prior to the investor resorting to international arbitration. As a result, In 2016, the Energy Charter Conference endorsed a Guide on Investment Mediation (prepared in cooperation with the International Mediation Institute, SCC, PCA, ICSID, ICC and UNCITRAL) and encouraged Contracting Parties to consider to use mediation on voluntary basis as one of the options at any stage of the dispute to facilitate its amicable solution and to consider the good offices of the Energy Charter Secretariat. The Conference also welcomed the willingness of the Contracting Parties to facilitate effective enforcement in their Area of settlement agreements with foreign investors in accordance with the applicable law and the relevant domestic procedures. The same year 2016, the Secretariat established a Conflict Resolution Centre to provide assistance and support in connection with good offices and mediation in relation to investment disputes or to disputes between Contracting Parties regarding the interpretation or application of the Treaty.