Symposium on International Investment Law & Contemporary Crises: What Empirical Trends Suggest about the Future of the Field

[Arif Hyder Ali, FCIArb, is co-author of the Empirical Study on International Investment Law Protections in Global Banking and Finance. His career spans senior roles at major international firms, the United Nations Compensation Commission, and WIPO before founding the boutique dispute resolution firm, AHALI, in 2025.

Christine Carpenter is an international lawyer, and currently a Gates Scholar and PhD Candidate in International Relations & Politics at the University of Cambridge.]

Introduction

One year ago this month, the British Institute of International and Comparative Law (BIICL) published a comprehensive empirical study on investment protection in global banking and finance (GBF). Co-authored by leading practitioners in the investment arbitration field, Prof. Arif Hyder Ali, Dr. David Attanasio, Prof. Yarik Kryvoi, and Kai-Chieh Chan, the study examines the publicly available decisions of investor-State tribunals addressing the protection of investments in the banking and finance sector. The Report’s findings, detailed further below, carry wide-ranging implications for investor-State arbitration. For the anniversary of the Report’s publication, and in order to further explore these findings and contemplate what they indicate about various aspects of the investor-State dispute landscape, the convenors have organized this symposium to feature discussions from both academics and practitioners with a diverse range of experience and expertise in the field.

The Report

The Report addresses what kinds of banking and finance investments have given rise to investor-State disputes, what types of State measures have been challenged, who are frequent parties to these types of disputes, and what are common outcomes. In undertaking this exploration, specifically drawing on empirical methods as opposed to the oft-preferred doctrinal approach, the Report provides observations about the strength and limits of investment treaty protections in the financial sector. 

In terms of methodology, the authors compiled a dataset of 149 publicly available investor-state arbitration cases that involve banking/finance-based investments as of 30 June 2024. The decisions were coded for, inter alia, the year of alleged breach, year of filing, year of final award, instrument of consent, arbitral rules applied, administering institution, applicable law, identity of nominal and effective investors, identity of host state, type of investment, type of measure at issue, type of alleged breach, types of defenses, and outcome. The outcomes were further sorted into decisions on jurisdiction and merits, and either as successes, failures, or partial successes. The results of this analysis were then expressed as statistical data, visual graphics, and descriptive analysis that was used to “identify patterns and trends in global banking and finance disputes.” The study was then peer-reviewed in advance of publication. 

The Report’s findings are discussed in detail by a number of our contributors, but as an overview, the Report provides a clarified picture of the lifecycle of an investor-State dispute in global finance. It found that on average, these disputes resolve quite efficiently compared to other forms of international dispute—which can take around 4 years to reach resolution. The vast majority of cases were brought under bilateral investment treaties (BITs), with the International Centre for Settlement of Investment Disputes (ICSID) serving as by far the most prominent forum (56% of all GBF cases). Both claimant and respondent parties concentrate among a very small subset of states—with over half of the disputes being initiated by investors located in either Austria, France, the Netherlands, Switzerland, the United Kingdom, or the United States, and approximately one-third of all cases involving Argentina, India, Croatia, Slovakia, Venezuela, Czechia, and the Russian Federation as respondents. In terms of outcomes, the Report’s findings are perhaps also unexpected, revealing that of the 96 concluded cases examined, investors prevailed in 28% of cases, while States prevailed in about half of cases, and 25% concluded in settlement.

Relevance to the Future of ISDS for Global Banking and Finance

The Report found that, unsurprisingly, GBF disputes arise in an inconsistent manner, clustering around times of major financial or economic crisis (e.g., Argentina 2001-2002, Greece 2013-2015). Moreover, it found that on average the delay from such a crisis to the time of filing to commence a dispute is approximately 3 years from the alleged breach. In light of the financial turmoil arising during the Covid-19 pandemic (2020-2022), the inflation and interest rate shock of post-Covid financial strains, various cryptocurrency crashes, geopolitical tensions and conflicts, and numerous sovereign debt crises of recent years, the coming years are thus likely to be replete with GBF disputes. Accordingly, the Report’s findings hold timely takeaways for the immediate future of investor-State disputes. 

The first is that investment treaty protections are indeed meaningful in the financial sector. The fact that investment tribunals have so frequently found for claimants in many GBF cases shows that tribunals do not simply defer to States invoking crisis powers, and thus that investment law offers genuine and reliable protection for international investment. At the same time, that protection is not absolute and varies based on context, with tribunals being willing to defer to States’ motives, proportionality, fairness, and legitimacy in exercising regulatory authority and have found for the Respondent State.  The relative—though far from perfect, as will be explored in some of the symposium contributions—efficacy of the current investment law regime will therefore likely have a prominent role in how States and the international community navigate the future financial crises and their ramifications. 

The Contributions

In this symposium with Opinio Juris, the convenors aim to generate a dialogue among leading investment arbitration scholars and practitioners reflecting on the Report’s findings and its implications for the future of investment arbitration. To that end, the symposium opens today with a piece by one of the Report’s authors, David Attanasio, who demonstrates from the Report’s empirical findings how economic or financial crises drive investor-state disputes (ISDs), and what dynamics often emerge from such cases in terms of party identity and the efficacy of relying on investor-state dispute mechanisms in seeking to resolve such claims. 

On Tuesday comes a piece by another contributing author, Kai-Chieh Chan, who digs deeper into the Report’s empirical findings, discussing the propensity of ISDs claims to coincide with global banking and finance crises, the time horizons of such cases, and how investment tribunals balance the policy interests of States in times of financial emergency against investor rights. Next, Kiran Gore’s contribution focuses on the role of the central bank in a State’s regulatory efforts, which she argues is often overlooked in its role in shaping international investment treaty claims, and considers how the actions of a central bank might give rise to claims by foreign investors in ISDs. 

This is followed on Wednesday by Francis Xavier and Matthew Koh, who discuss the different jurisdictional approaches to claimant-investor nationality explored in the Report, outlining two broad situations where a tribunal may have jurisdiction even where the nationalities of the claimant and its controlling interests vary. Next, Frédéric Sourgens reflects on what the Report’s findings mean for energy finance market design, particularly in light of recent developments impacting on climate-related lending regulations and on climate finance—such as the ICJ’s recent Advisory Opinion on Obligations of States in Respect of Climate Change. 

On Thursday, Saïda El Boudouhi examines the police powers doctrine and States’ right to regulate in banking and finance disputes, and analyzes how these doctrines manifest in line with different bases of a claim—as a component of the indirect expropriation rule and the fair and equitable treatment principle, respectively. Lastly, Güneş Ünüvar analyzes the Report’s findings in the context of the longstanding colonial critique of the ISDS system, demonstrating how banking and finance disputes add important nuance to this discussion.