A key feature of protecting foreign investments is a system for the resolution of disputes. Host state courts may be biased towards foreign investors, and/or the rule of law may not as such be guaranteed.

Also, state courts will most likely apply domestic law, and depending on the interdependence, in that country’s specific domestic legal order, between public international law and domestic law, public international law may not even be available as a ground for a claim before a domestic court.

Investor-state dispute resolution is often considered synonymous to investor-state arbitration but that is not necessarily the case. Alternative dispute resolution methods, such as structured negotiations, conciliation, or mediation are increasingly resorted to. Also, investors may prefer to bring a commercial arbitration or even a litigation case rather than an ISDS case, depending on the circumstances.

Relevant Experience of BODENHEIMER Attorneys

Axel Benjamin Herzberg and Dr Rouven F Bodenheimer routinely advise both, investors and governments on international investment law issues. Mr Herzberg also handled a number of ISDS cases as Deputy Counsel at the Secretariat of the ICC International Court of Arbitration in Paris.

Dr Nicolas Klein worked for German Federal Constitutional Court Justice Professor Dr Andreas Paulus, himself a renowned public international law specialist who represented Germany, inter alia, before the International Court of Justice in the LaGrand case against the United States. Both, Dr Klein’s doctoral thesis and his LL.M. studies at Columbia University (New York) revolved around issues of international investment law, in particular the scope of application ratione personae of bilateral investment treaties.