How many international arbitration lawsuits were filed by foreign investors against their host countries last year? One UN agency, in a recent count of public sources, documented at least 57 cases where an investor sued its host for allegedly breaching an investment protection treaty.
At least a dozen of these 2013 cases were brought against just two countries – Spain and the Czech Republic – each of which are being sued repeatedly by energy companies that are peeved about the recent clawback of renewable energy incentives.
Egypt also found itself in the crosshairs six times in 2013, as a result of the upheaval caused by political events in the country. A number of investors have sued when previous privatisations were reversed by Egyptian authorities. More surprising, Canada also accounted for three of the 57 cases launched last year, with several US investors accusing their neighbour of treating them unfairly.
While Spain, the Czech Republic, Egypt and Canada all figured prominently in the legal headlines last year, it is important to bear in mind that we can only measure those cases that are voluntarily disclosed – either by investors or the relevant host countries.
There are no binding requirements for all such arbitration claims to be disclosed, even to the taxpayers of the country being sued. So, every year, an unclear number of cases fly under the radar.
If observers are tallying upwards of 60 visible cases filed last year, that should be taken as the floor. My best guess, as a journalist working in this field for the past decade, is that another 15 to 20 'invisible' cases may have been filed last year without fanfare.
Countries such as Tajikistan and Chad, and even major powers such as Russia or China, may be sued by foreign investors, but those cases may not be publicised by the relevant investor, or the host country.
Often these 'invisible' lawsuits pop into the open only when a final ruling is rendered, and one side wants to trumpet its good fortune. For example, we were surprised to learn last year that a Kuwaiti construction company, Al-Kharafi & Sons, had won nearly $1bn in an arbitration with Libya in relation to a failed resort development. Although that case was launched back in 2011, it never came to light until a final ruling was issued by arbitrators in March of 2013.
Thus, while the vast majority of host countries appear to have gone unscathed last year, the truth is that it may be several years before we really learn which countries have been taken to arbitration for allegedly failing to live up to their international treaty obligations.
Luke Peterson is the editor of Investment Arbitration Reporter (http://www.iareporter.com) an online news and analysis service tracking FDI legal disputes.