Where the right to arbitrate comes from
In international investment arbitration, the investor usually has no arbitration clause with the state. Instead, consent comes from a bilateral investment treaty, a free trade agreement with an investment chapter, or sometimes the host state's own investment law. Many cases are administered by the International Centre for Settlement of Investment Disputes, part of the World Bank Group, while others proceed under the UNCITRAL rules. Treaties commonly protect against expropriation without compensation and against unfair or discriminatory treatment, but the exact protections, and the exceptions, vary from treaty to treaty. Some free trade agreements, including the one between the United States and Korea, contain investment chapters with their own dispute procedures.
Questions that decide whether a claim exists
The first issue is often whether you are a protected investor at all. That depends on your nationality, or your company's, under the specific treaty, and on whether what you hold counts as an investment. Restructuring ownership after a dispute is foreseeable may not create treaty protection, and tribunals look closely at timing. Many treaties require written notice and a waiting period for negotiation before a claim can be filed, and some require local court proceedings first or bar claims already brought elsewhere. Missing one of these steps can be a serious problem, so the treaty text has to be read before any letter goes to the government.
Building the case and the first conversation
Investment cases are document-heavy and often long. Contracts, permits, correspondence with officials, board minutes, and valuation records will all matter, as will a careful account of the government measures and their timing. Damages usually require financial analysis from a retained valuation witness. In a first consultation we look at which treaties might apply, whether the investment structure qualifies, and what notice or waiting requirements are running. We also discuss whether negotiation with the government remains realistic, how the case might be funded, and how an award could be enforced against the state.
