Can a three-year deadline in Armenia’s Civil Code derail a $331 million investment arbitration? The recent ICSID award in Rasia FZE and Joseph K. Borkowski v. Republic of Armenia says yes, exposing a critical spot in investor-state dispute settlement (ISDS): the quiet power of domestic law to strangle investment claims. The dispute stemmed from a grand infrastructure project, a North-South railway corridor meant to link the Persian Gulf to the Black Sea via Armenia. In 2012, Armenia signed two Concession Agreements with Rasia FZE, a Dubai-based investment vehicle, to conduct feasibility studies and project development. The Claimants asserted Armenia subsequently: (1) abruptly withdrew political backing; (2) failed to provide promised support; and (3) engaged with competing investors, actions they claimed constituted both contractual breaches and violations of the US–Armenia BIT’s FET guarantees. Joseph K. Borkowski, Rasia’s US-national CEO, joined the arbitration seeking $331 million for the project’s collapse.
Investor-State Arbitration Tribunals
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When Reinforced Self-Judgment Meets Judicial Review: Insights from Seda v. Colombia
On 27 June 2024, the tribunal in the investment dispute Seda v Colombia delivered a long-awaited award. The decision, hailed by Colombia as ‘historic’, represents the first publicly available award where an investment tribunal accepted the ‘self-judging’ character of a provision within an investment agreement. Additionally, it is the first public award to dismiss an entire…
How a documentary film can help UNCITRAL Working Group III think through ISDS reform
As states explore options to reform investment treaties and investor-state dispute settlement (ISDS), they can draw on a growing body of grounded perspectives about how the system works in practice and how it is experienced by those involved in or affected by investment disputes. The Tribunal, a documentary film directed by Malcolm Rogge in collaboration…
UNCITRAL and ISDS Reform: Lifelong Learning
How many International Investment Disputes have there been since 1973? How many International Investment Disputes are ongoing now? We do not know. There is no authoritative count. How many treaty-based awards issued by arbitral tribunals since 2000 are not publicly available? Again, nothing authoritative can be said except that a sizeable percentage of such awards are not available.
UNCITRAL and ISDS Reform: Moving to the Delivery Phase
The investor-state dispute settlement (ISDS) reform process underway in UNCITRAL Working Group III has entered the delivery phase. The first four reform products were delivered in July 2023, when they were adopted by the UNCITRAL Commission. The Working Group plans to deliver more reform products – an advisory centre and possibly also guidelines on dispute prevention – to…
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