Investor-State Disputes, Investment Treaty Law and Business Climate
Prof Kryvoi is a leading expert in the area of international investment law. He is listed at arbitrator and regularly advises policy-makers, investors, arbitrators. For several years, he practised investor-State disputes with leading international law firms in Washington, D.C. and London.
He has formulated proposals on foreign investment regulation for various states, including how to reform their international investment treaties, foreign investment laws and how to resolve disputes between investors and States.
As an international law expert he has led and conducted projects with Allen & Overy, Baker Botts, Baker Mckenzie, Reed Smith, UNCTAD, UNODC, White and Case, WilmerHale, Withers and other organisations.
His practice involved representing both States and foreign investors, particularly in the areas of telecommunications, oil and gas, retail and food processing. The disputes were governed by ICSID, UNCITRAL, SCC and the arbitration rules. His representative matters include the following:
Advising a government in Central Europe on ICSID arbitration arising out of a privatisation project and alleged breach of an international investment treaty, including the preparation of counterclaims against the investor
Advising a major United States oil company in a multimillion-dollar dispute under UNCITRAL arbitration rules against a former Soviet Union State arising out of a product-sharing agreement
Consulting a consortium of international energy companies in a multimillion-dollar tax dispute against a State in Central Asia under UNCITRAL arbitration rules.
Advising a government in Central Asia on reforms of its investment protection legislation and international investment agreements as a part of a project funded by the World Bank.
Prof. Kryvoi is a leading academic in the area of international investment law. He is the Senior Research Fellow in international economic law and director of Investment Treaty Forum, a leading platform for high-level debate about international investment law involving practitioners, academics, government officials and investors.
He regularly speaks at conferences and referees submissions on for the ICSID Review - Foreign Investment Law Journal, Journal of International Dispute Settlement, International and Comparative Law Quarterly.
As an expert, he is regularly invited by States and international organisations such as UNCTAD, UNCITRAL and World Bank to high-level meetings, policy consultations, while his input sought for the preparation of policy documents.
His academic publications on investor-state disputes and investment treaty law include:
Three Dimensions of Inequality in International Investment Law, BIICL (2020)
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This paper puts the system of international investment law into its historical context, examines economic data as well as most recent statements of states on inequalities in international investment law. It examines inequalities between foreign investors and states, between developed and developing states as well as between foreign and domestic investors. It shows that each dimension of inequality has its own raison d'etre and proposes ways to tackle them in the context of today’s political and economic realities.
First, this paper asserts that the international investment law’s asymmetric model giving the foreign investor only rights and the host state only obligations no longer reflects the new economic and political realities. The equilibrium between corporate and state actors has significantly shifted and international investment law should be reformed accordingly. The existing model furthers the accumulation of wealth and capital in the Global North and the concentration of corporate power.
Second, the paper shows that in theory, both developing and developed states should be able to equally benefit from international investment agreements. However, in practice, this system disproportionally benefits states in the Global North (capital-exporting states, law firms and arbitrators) while those in in the Global South (primarily developing States) are struggling to find expertise and resources to cope with the influx of investor-state disputes.
Third, the original idea that host states may discriminate against foreign investors is still valid in many cases. However, states are increasingly concerned about the less favourable treatment of their domestic investors, compared to foreign investors, both on procedural and substantive levels.
Finally, the paper recommends several measures to reduce inequalities in international investment law. Reform of the system should tackle the lack of accountability of economically powerful corporations, enduring legacies of colonialism in economic development, as well as give states a greater say on their public policies aimed at protecting human rights, environmental standards, strengthen the rule of law and reduce inequalities.
More specifically, the paper proposes to give greater prominence to the law of host states as applicable law. Further, to widen the inclusion in international investment agreements obligations of the investors related to labour rights, human rights, environmental standards and corruption. It also calls for more effective mechanisms allowing states to assert claims and counterclaims against investors and for measures to reduce the cost and length of investor-state disputes. Finally, it emphasizes the need to strengthen the capacity of states to avoid and better handle investor-state disputes.
‘The Path of Investor-State Disputes: from Compensation Commissions to Arbitral Institutions’, ICSID Review - Foreign Investment Law Journal, 2019
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Protection of aliens under international law has progressed from them being clanless individuals or outlaws completely at mercy of the local lord, with no entitlement to the peace and protection of the locality in the earliest times to the modern sophisticated investor-State dispute settlement mechanisms.
Several fundamental changes have occurred since the constitution of the early compensation commissions of the 18th century leading to the modern system of resolution of investor-State disputes. First, a growing number of multinational enterprises operating globally have become major actors on the international public law plain, in areas in the past reserved only for States. Second, international organisations and other nonstate actors have dramatically strengthened their influence with efficient international arbitration institutions dominating the system of investor-State dispute resolution after the end of the Cold War.
The methods for resolving investor-State disputes have evolved primarily along the lines of creating specialised institutionalised forms. While early commissioners relied on their subjective understanding of justice and fairness, today the expectation is applying agreed set of rules, so that failure to do so may result in annulment of the award.
The evolution of various methods of international dispute settlement and the emergence of new methods, such as international investment courts, does not necessarily mean that the older forms of dispute resolution will die like the dinosaurs. They will continue to function, albeit with modifications and will inform the future models of international dispute settlement.
The International Centre for Settlement of Investment Disputes
(Kluwer Law International, 2020, fourth edition).
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Derived from the renowned multi-volume International Encyclopaedia of Laws, this practical analysis of the structure, competence, and management of International Centre for Settlement of Investment Disputes (ICSID) provides substantial and readily accessible information for lawyers, academics, and policymakers likely to have dealings with its activities and data. No other book gives such a clear, uncomplicated description of the organization's role, its rules and how they are applied, its place in the framework of international law, or its relations with other organizations.
The monograph proceeds logically from the organization's genesis and historical development to the structure of its membership, its various organs and their mandates, its role in intergovernmental cooperation, and its interaction with decisions taken at the national level. Its competence, its financial management, and the nature and applicability of its data and publications are fully described.
Systematic in presentation, this valuable time-saving resource offers the quickest, easiest way to acquire a sound understanding of the workings of International Centre for Settlement of Investment Disputes (ICSID) for all interested parties. Students and teachers of international law will find it especially valuable as an essential component of the rapidly growing and changing global legal milieu.
‘Investment Promotion and Protection in the Canada-UK Trade Relationship: Knowledge Synthesis Report’ (2018)
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A new investment agreement between Canada and the UK constitutes a crucial opportunity to include innovative provisions from recent international agreements and to explore new possibilities to construct a more legitimate regime. In order to support evidence-based decision-making in the negotiation of such an agreement, a comprehensive review of the range of opportunities must be provided. What are the provisions that can be included in an investment agreement between the two states to address controversial issues and support the reform of the international investment regime?
The objectives underlying the final report are to allow policy-makers to undertake the negotiation process with a clear sense of the various provisions that are available to address the most controversial issues of international investment law and their legal implications. The report demonstrates that an investment agreement can respond to legitimacy concerns raised by a variety of stakeholders. More specifically, it provides a side-by-side comparison of provisions that have already been included in IIAs and model agreements for three specific themes: 1) dispute settlement possibilities; 2) the breadth of investment protection; and 3) obligations imposed on foreign investors.
For each theme of the knowledge synthesis, the material that has been collected and analyzed is synthesized through a side-by-side comparison of provisions and their legal implications.
1. Dispute settlement possibilities: The mechanism allowing private investors to submit investment claims to international arbitration has come under increasing public scrutiny, with several actors criticizing its lack of legitimacy. Some policy-makers and negotiators have responded to these criticisms through various means. The report focuses particularly on six approaches that have been included in IIAs and model agreements. These approaches range from a reformed investor-state dispute settlement mechanism through the inclusion of new provisions, a return to diplomatic protection and state-to-state arbitration, reliance on domestic courts, alternative dispute resolution mechanisms, hybrid approaches, and an investment court system.
2. Breadth of investment protection: Addressing concerns raised by stakeholders can also be achieved by further clarifying the content of standards of protection that are traditionally included in IIAs. An enhanced level of precision is especially visible with respect to fair and equitable treatment (FET) and expropriation. Various options have been used by states to qualify FET provisions and to list the elements included in this standard of protection. Other provisions include a limiting definition of indirect expropriation or various forms of carve-outs, including for general regulatory measures.
3. Obligations imposed on foreign investors: With a view to countering the generally asymmetric nature of IIAs, some states have chosen to address foreign investors’ responsibilities in various ways. Some examples refer to these responsibilities in the preamble of an IIA or in provisions referring to the concept of corporate social responsibility. More constraining provisions impose direct obligations on foreign investors, call for an explicit consideration of the investment’s negative impact or deny substantive protection for investment made through corruption or other fraudulent means.
‘ICSID Arbitration Reform: Mapping Concerns of Users and How to Address Them’, British Institute of International and Comparative Law (2018)
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This paper summarises key practical concerns of some members of the Investment Treaty Forum related to ICSID arbitration, as well as a wider community of experts, how the ICSID reform proposals address these concerns and makes suggestions for further improvement.
The paper looks at key concerns of ICSID arbitration users such as timely appointment of arbitrators and challenges to it, over-committed arbitrators and their conflicts of interest, access to emergency arbitrators and fast-track arbitration procedure, procedure for summary rejection of claims and amicable settlement of disputes, consolidation of proceedings, allocation of costs and security for costs, timely rendering of awards and consistency of ICSID annulment decisions.
The paper also includes a comparison between the ICSID Arbitration Rules and other major arbitration rules designed for investment arbitration proceedings: the UNCITRAL Arbitration Rules, the Arbitration Institute of the Stockholm Chamber of Commerce Arbitration Rules (SCC Rules), and the 2017 EU-Canada Comprehensive Economic and Trade Agreement (CETA).
‘Economic Crimes in International Investment Law’, International and Comparative Law Quarterly, Volume 67, Issue 3, pp. 577-605 (2018)
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The protection of foreign investment by treaties often clashes with the State's sovereign right to investigate economic crimes committed by investors. This article examines the different approaches taken by tribunals to questions concerning admissibility and jurisdiction, applicable law, the standard of review, the burden and standard of proof and deference to actions taken by domestic courts and regulators related to economic crimes.
It concludes that investors should not automatically be deprived of treaty protections and their access to investment arbitration blocked. The arbitration agreement, being autonomous from the main contract (or the relevant treaty), should, as a rule, remain valid even if the conduct of investors is tainted by economic crimes.
The article calls on investment tribunals to reflect in their awards on the contributory fault of the parties when representatives of States and investors are both complicit in economic crimes. To achieve greater legal certainty and procedural efficiency, a new generation of investment treaties and the practice of investment tribunals should draw on not only applicable domestic law but also existing sources of international law concerning economic crimes or national best practice.
Law and Practice of International Arbitration in the CIS Region (co-edited with Kaj Hobér) (Wolters Kluwer, 2017).
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Law and Practice of International Arbitration in the CIS Region offers the first comprehensive overview of commercial arbitration in the Commonwealth of Independent States (CIS) region. After the collapse of the Soviet Union over a dozen new states emerged with their individual systems of international commercial arbitration.
Today, the former Soviet republics such as Russia, Ukraine, Kazakhstan, and others generate a significant and growing amount of work for the major Western and CIS regional, international arbitral institutions.
This book, a country-by-country analysis of regulation and practice of international arbitration in ten CIS jurisdictions, examines notable developments in the use of arbitration mechanisms contained in bilateral and multilateral investment treaties affecting the region.
‘Consolidating the International Investment Agreement Network’, UNCTAD Annual High-level IIA Conference 2017, United Nations Commission on Trade and Development (2017) (with Steffen Hindelang)
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This report summarises presentations and discussions of State representatives, intergovernmental organisations, academics and other stakeholders in Break-out Session 3 on Consolidating the International Investment Agreements (IIA) Network at UNCTAD’s Annual High-level IIA Conference - Phase 2 of IIA Reform.
Along the lines sketched in the UNCTAD World Investment Report 2017, the participants discussed four main approaches available to States to consolidate international investment agreements:
issuing joint interpretative statements by parties to IIAs (an issue also discussed in BoS 2);
replacing old bilateral investment treaties with modern bilateral treaties one by one;
replacing several investment treaties with one modern regional agreement (consolidation);
and
managing relationships between coexisting treaties by transition clauses.
States reported using all these approaches, often in combination, to manage their treaty portfolio. While replacing one treaty by another may resolve problems in individual cases, consolidation and de-fragmentation of the international network require a more systematic approach.
The International Centre for Settlement of Investment Disputes
(Kluwer Law International, 2016, third edition).
|| + Abstract || Buy ||
Derived from the renowned multi-volume International Encyclopaedia of Laws, this practical analysis of the structure, competence, and management of International Centre for Settlement of Investment Disputes (ICSID) provides substantial and readily accessible information for lawyers, academics, and policymakers likely to have dealings with its activities and data. No other book gives such a clear, uncomplicated description of the organization's role, its rules and how they are applied, its place in the framework of international law, or its relations with other organizations.
The monograph proceeds logically from the organization's genesis and historical development to the structure of its membership, its various organs and their mandates, its role in intergovernmental cooperation, and its interaction with decisions taken at the national level. Its competence, its financial management, and the nature and applicability of its data and publications are fully described.
Systematic in presentation, this valuable time-saving resource offers the quickest, easiest way to acquire a sound understanding of the workings of International Centre for Settlement of Investment Disputes (ICSID) for all interested parties. Students and teachers of international law will find it especially valuable as an essential component of the rapidly growing and changing global legal milieu.
‘Consent Awards in International Arbitration: From Settlement to Enforcement’, Brooklyn Journal of International Law, Volume 40, pp.827-686 (2015)
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Although over a third of all arbitration proceedings result in settlement agreements very little has been written on the legal status of consent awards in international arbitration.
Drawing on a comparative analysis of procedural rules and practice of major arbitration tribunals, domestic law of common and civil law jurisdictions, this Article presents the first major study of consent awards in international arbitration.
Consent awards, being effectively settlement agreements recorded by arbitration tribunals as awards, raise a number of difficult legal questions, ranging from the right of arbitrators to refuse recoding the settlement as a consent award to the possible use of consent awards to cover illegal activities.
Understanding what makes consent awards different from “normal” arbitration awards will help successfully navigate from settlement to enforcement.
‘Counterclaims in Investor-State Disputes’, Minnesota Journal of International Law, Volume 21, pp. 216-252 (2012), London School of Economics Legal Studies Working Paper No. 8/2011 (2011).
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Although nearly all arbitration rules provide for the right to assert counterclaims in investor-state disputes, many tribunals are reluctant to allow such counterclaims. The two key issues, which tribunals and this Article examine, are investor consent to counterclaims and determination of investor obligations towards the host State.
This Article examined jurisprudence of the Iran-U.S. Claims Tribunal, International Center for Settlement of Investment Disputes tribunals, and UNCITRAL tribunals. The examination suggests that if the relevant treaty contains an offer of jurisdiction only in relation to disputes arising out of State obligations, tribunals are reluctant to extend their jurisdiction over counterclaims. However, if the relevant dispute resolution provision is broad or the parties subsequently alter the jurisdictional offer either explicitly or implicitly tribunals are more likely to allow counterclaims.
The Article shows that in the absence of investor obligations provisions in international treaties, general principles of law appear to be an appropriate source of international law to determine such obligations. The State may also assert counterclaims if the investor breached its obligations under the investment contract concluded with the State. The State, however, cannot assert counterclaims in investor-state arbitration based on purely domestic law obligations of investors.
International Investment Law and Dispute Resolution (online course)
