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Blogs - Arbitration Case Digest

Challenges to interim awards on jurisdictions rendered in investor-state arbitrations dismissed

29.11.2018 – Case Number: 4A_396/2017 and 4A_398/2017 (16 October 2018)

In two decisions dated 16 October 2018, and published on 16 November 2018, the Swiss Supreme Court declined the Russian Federation's requests to set aside two interim awards for lack of jurisdiction.

The Supreme Court found that the arbitral tribunal rightly held, that the territorial scope of the bilateral investment treaty between the Russian Federation and the Ukraine of 27 November 1998 (Russia-Ukraine BIT), includes the Crimea as a territory over which the Russian Federation exercises de facto control. With respect to the subject-matter scope of the Russia-Ukraine BIT, the court concluded that the term "investment" in Article 1(1) of the Russia-Ukraine BIT also comprises investments originally made in the investor's home state that are only subsequently located in the host state as a result of a shift of borders. (Decisions 4A_396/2017 and 4A_398/2017, (dated 16 October 2018, and published on 16 November 2018).)