Cases

The number of arbitral case law on the protection of foreign sovereign investors and their participation to arbitration cases is very limited.

In 1997 the ICSID decided the Obchodni Banka, A.S. v. The Slovak Republic case No. ARB/97/4. This is one of the few cases in which a state controlled entity has used the ICSID tribunal to seek protection for its foreign direct investments. The tribunal granted standing to the SCEs qualifying it as a national of another contracting state in compliance with Article 25 of the ICSID Convention.

Another important case has been initiated by the Regional Government of Kaliningrad in 2006 under the rules of the International Chamber of Commerce. The claim was filed under the investor –state mechanism provided by the BIT between Russia and Lithuania. The award has not been published but it has been reported by IAReporter that the tribunal has recognized to the state controlled entity the capacity to file a claim in an investor state tribunal and concluded that the Kaliningrad Region is a protected investor under the Russia- Lithuania BIT.

A third very relevant case regards the Libyan SWF. The award issued by the Arab Investment Court faces the participation of the Libyan Investment Authority (LIA) as a defendant in the case between M.A. Al Kharafi and Sons v Libyan Government. Despite the fact that the Arbitral Tribunal rejected the request of joinder of the LIA to the arbitration it confirmed that the SWF “remains an integral part of the State to which applies the arbitral award as well as to all its entities and bodies, even though they were not joined to the present arbitration case.

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