Investments on Disputed Territory: Indispensable Parties and Indispensable Issues

Abstract

International investment agreements generally only protect investments in the ‘territory’ of the respondent State. As a result, an investment tribunal seized of a dispute concerning an investment on disputed territory may have to determine whether the respondent State has sovereignty over the territory in question. This should create some discomfort for two reasons. First, the tribunal may be exceeding its jurisdiction ratione personae, as it would be ruling on the sovereignty dispute with only one of the disputing States at the table. Second, the tribunal may be exceeding its jurisdiction ratione materiae, as it generally only has the power to rule on investment disputes, not sovereignty disputes. This Article explores the merits of two preliminary objections — corresponding to these two jurisdictional problems — to claims concerning investments on disputed territory: the doctrine of indispensable parties and the doctrine of indispensable issues.

Keywords: international law, investment, arbitration, disputes, territory, jurisdiction, admissibility, indispensable parties, indispensable issues, Crimea, Ukraine, Russia