Investor-state disputes (ISDs) rarely remain confidential as investors look to deploy the news media as a tool to put pressure on states to pay adverse arbitral awards, according to a report from London-based disputes communications specialists Thorndon Partners.
The research found that ISDs generated more than 1,600 English-language news articles in 2024 across the world’s five most popular arbitral seats, averaging four stories a day.
This is despite the fact that a key benefit of arbitral disputes for parties is their supposed confidentiality.
The volume of coverage reflects both an increase in the number of ISDs and a steep rise in the amount of unpaid arbitration debts. Between 2015 and 2024, ISDs more than doubled while the number of unpaid arbitration debts by governments surged by 209% from 2022-24, with the total known value of debts rising by 31% to exceed $83bn.
“Governments are wary of the flak that can arise from ‘handing over taxpayer money’ or ‘surrendering’ to international investors,” said Charles McKeon, co-founder of Thorndon Partners and lead author of the report. “Paying arbitration awards, or settling with creditors involved in these cases, is as much a political decision as it is a legal outcome.”
London’s news media leads globally in reporting on ISDs, making up 31% of all coverage among the top five arbitration centres, which also include Singapore, Paris, Beijing and Hong Kong.
Singapore followed closely behind London in terms of media attention, underlining its status as a challenger arbitral hub, as confirmed by this year’s White & Case/Queen Mary University International Arbitration Survey.
Thorndon’s research was based on an analysis of the media coverage of the 55 cases registered in 2024 with the World Bank's International Centre for Settlement of Investment Disputes (ICSID), the main forum for hearing investor-state disputes. It found that 87% of the cases were reported at the time of filing in 2024, with 18% being covered even before they were officially submitted.
The report also cites a case study involving the Spanish government, which has faced 50 claims filed under the Energy Charter Treaty at the ICSID from investors challenging changes in its renewable energy policy.
In June, Spain made its first award payment when it agreed to pay $32m of award debt to US-based Blasket Renewable Investments, compensation having been first awarded in 2021.
“What is clear from Thorndon’s analysis is that payment followed a very notable increase of public scrutiny, combined with an assertive enforcement strategy,” the report argues. “This public pressure from the investor may just have pushed Blasket to the front of the queue for payment.”
Professor Nikos Lavranos, secretary-general of the European Foundation for Investment Law and Arbitration, said: “The media is a tool to increase pressure on states to pay their adverse awards. The data shows that the number of awards, alongside the number of recalcitrant states which refuse to pay, are steadily increasing.”
Professor Loukas Mistelis of Queen Mary University of London, a co-chair of London International Disputes Week, said investor conduct was also coming under greater scrutiny, leading to the politicisation of disputes, with politicians referring to them for electoral purposes.
He argued that the politicisation of investor-state disputes was increasing the popularity of commercial arbitration for investors.
He said: “It is... not surprising that multinationals with a stronger negotiation position when contracting with states or state-owned enterprises opt for commercial arbitration, which has a higher level of confidentiality.”
In August, the UK’s Arbitration Act came into force with the objective of modernising the UK’s commercial arbitration framework as part of a growth agenda aimed at attracting greater foreign investment.
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