INTRODUCTION

Historically, investors whose investments were expropriated or nationalised by the Host State had few rights of redress. The options were limited to seeking to enforce their rights in the national courts of the Host State or appeal to their own Home State to place commercial, diplomatic, or military pressure on the Host State depending on the nature of the said investment.

However, the international community has taken a conscious step to promote investment into developing nations by creating avenues for foreign investors to protect their rights over the last 50 years.

The first key development was the creation of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (hereinafter referred to as “the ICSID Convention”) in 1965. This led to the establishment of the International Centre for the Settlement of Investment Disputes (“ICSID”) as a division of the International Bank for Reconstruction and Development (“World Bank”).

Arising from the ICSID Convention, there has been an exponential growth in the number of investment treaty arbitrations that have been filed with ICSID as foreign investors seek to protect and enforce their rights by relying on the protection afforded in Bilateral Investment Treaties (“BITs”) between the State the foreign investor is investing in and the Host State.