The Proliferation of BITs: Conflicts of Treaties, Proceedings and Awards

Abstract

Abstract The considerable number of bilateral investment treaties (BITs) in force has given rise to conflicts when, in relation to the same subject matter, a right of action exits for a given investor (or related investors) under different BITs. In fact, two recent international disputes, the CME v. Czech Republic and Lauder Czech Republic arbitrations, have attracted widespread attention as the first example in which this situation has arisen. The same acts by the Czech Republic were subject to two separate arbitrations conducted concurrently. The two cases, however, underwent conflicting procedures, were dealt with under conflicting governing treaty provisions and resulted in seemingly conflicting awards. This situation has highlighted the risks inherent in the current international investment regime of intricate, non-coordinated networks of BITs. The fundamental risk is that this glaring inconsistency could potentially bring a backlash against international investment.

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