Investing in disputed territories. The Application of BITs in Crimea and other cases

Luogo: Scuola di Studi Internazionali, via T. Gar 14 Trento, Aula 001
Orario: dalle 14.15 alle 16.00

• Guest Speaker
  Sondra Faccio, Scuola di Studi Internazionali

Abstract

The events in the east of Ukraine, leading up to the annexation of Crimea by Russian Federation and the latter illegal presence in other Ukrainian territories such as Donbass, is significantly weightingboth on Ukraine and Russian Federation economies and on their capacity to trade and attract foreign direct investments (FDIs). Approximately 4.000 enterprises seated in Crimea faced asset expropriations since Russia took over the territory. Eight claims have been filed by Ukrainian/Crimean companies before international investment tribunals alleging violation of the 1998 Ukraine-Russian Federation Bilateral Investment Treaty (BIT)by the Russian Federation. Companieslocated in Donbas have also reported interferences by Russian-backed separatists. The protection of FDIs in Ukraine have attracted significant attention both from the economic and the academic world as, on the one hand, the application of the Ukraine-Russian BIT seems to represent the only option to grant some protection against Russian interferences to investors located in Crimea; on the other hand, it touches upon some of the most sensitive international legal questions, including: the prohibition of forcible acquisition of territories and the application of the duty of non-recognition under international law, the right of self-determination and the right to secede, the norms presiding the succession of States in treaties, the scope of application of BITs, proceedings in absentia and measures to safeguard the procedural rights of the absent party. The ongoing lively academic debate has addressed many of these issues, putting forward diverse perspectives. After a brief overview of the Crimean crisis and its significance, the present Lecture aims to discuss the existing debate surrounding the application of the Ukraine-Russia BIT to cases involving Crimean companies and, more broadly, the protection of FDIs in disputed territories, giving special emphasis on whether and to what extent investor-State tribunals are entitled to decide over the legality/illegality of a certain territorial situations, whether investor-State tribunals are themselves bound to respect the duty of non-recognition of unlawful situation under international law and on whether customary international investment law can play a role (or not) in order to provide a “side” strategy to foreign investors located in disputed territories.