IPOL | Policy Department for Citizens’ Rights and Constitutional Affairs
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PE 703.592
investor–State dispute settlement allowed foreign investors whose home state was a contracting party
to an investment treaty to bring a claim before an arbitral tribunal, if the host state of their investment,
and contracting party to the same investment treaty violated the rights granted by that
investment
treaty. A vital precondition was for the states to wave their immunity.
In terms of substance, host states prioritized foreign investors’ property rights in order to attract
investments and were willing to constrain their policymaking, even in sensitive areas such as economic
policies and exploitation of natural resources.
106
As a result, a rapid proliferation of investment treaties occurred regulating the terms under which
nationals of one contracting state could invest in
another country, the host state.
107
Since the first
bilateral investment treaty between Pakistan and Germany signed in 1959, more than 2700 BITs were
signed.
108
Such protection to investors was not confined exclusively in investment agreements.
Investment protection provisions were also embedded in regional free trade agreements and in
monothematic treaties such as the Energy Charter Treaty (ECT).
109
The plethora of investment treaties has resulted multiple, overlapping channels that investors can use
- as long as their home state is signatory. According to the investment policy hub statistics, since 2014,
1104 investment arbitrations are registered in their public record, and from the 740 which are
concluded, 212 were decided in favor of the investor, 274 in favour of the State, 16 were
decided in
favour of neither party (liability found but no damages awarded), 148 were settled and 90 were
discontinued.
110
Interestingly, as Peinhardt and Wellhausen remark in relation to the award won by foreign investors
that ’[h]alf of these awards are below US$20 million. Five proceedings have resulted in awards of US$1
billion or more.’
111
In accordance with the above, the inclusion of duration clauses, which guarantee at the beginning the
minimum validity of an investment treaty, and
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