In the course of the negotiations between the European Union and the United States about the “Transatlantic Trade and Investment Partnership” (TTIP) the aspects of investment protection and investment arbitration have attracted much press attention. They have become key targets of criticism and massive attacks. Investment arbitration has been depicted as some obscure and undemocratic mechanism that helps rich companies to exploit poor countries. The discussion has become so agitated that oftentimes the underlying facts got out of sight.
The goal of the present article therefore is to shed some light on these facts and thereby trace the heated discussion back to an objective, sober-minded level. The authors explain in a step-by-step approach how investment protection in bilateral/multilateral investment treaties works and what standard principles of protection these treaties typically grant to foreign investors (e.g. no direct/indirect expropriation without compensation; no discrimination against foreign investors; the duty to accord fair and equitable treatment to foreign investors). These legal basics are then filled with life by the illustration of four publicly known investment arbitration case studies: Adem Dogan v. Turkmenistan, Philip Morris v. Australia, Vattenfall v. Germany and Walter Bau v. Thailand. The authors conclude that much of the current criticism is unfounded as it ignores factual realities and new developments in international investment arbitration.ASA Bulletin