{"id":132258,"date":"2026-03-09T13:22:43","date_gmt":"2026-03-09T13:22:43","guid":{"rendered":"https:\/\/my.legal500.com\/guides\/?post_type=comparative_guide&#038;p=132258"},"modified":"2026-03-09T13:26:01","modified_gmt":"2026-03-09T13:26:01","slug":"united-states-investment-treaty-arbitration","status":"publish","type":"comparative_guide","link":"https:\/\/my.legal500.com\/guides\/chapter\/united-states-investment-treaty-arbitration\/","title":{"rendered":"United States: Investment Treaty Arbitration"},"content":{"rendered":"","protected":false},"template":"","class_list":["post-132258","comparative_guide","type-comparative_guide","status-publish","hentry","guides-investment-treaty-arbitration","jurisdictions-united-states"],"acf":[],"appp":{"post_list":{"below_title":"<div class=\"guide-author-details\"><span class=\"guide-author\">Pillsbury Winthrop Shaw Pittman LLP<\/span><span class=\"guide-author-logo\"><img src=\"https:\/\/my.legal500.com\/guides\/wp-content\/uploads\/sites\/1\/2020\/06\/Pillsbury_logo_BW_75px.jpg\"\/><\/span><\/div>"},"post_detail":{"above_title":"<div class=\"guide-author-details\"><span class=\"guide-author\">Pillsbury Winthrop Shaw Pittman LLP<\/span><span class=\"guide-author-logo\"><img src=\"https:\/\/my.legal500.com\/guides\/wp-content\/uploads\/sites\/1\/2020\/06\/Pillsbury_logo_BW_75px.jpg\"\/><\/span><\/div>","below_title":"<span class=\"guide-intro\">This country specific Q&amp;A provides an overview of Investment Treaty Arbitration laws and regulations applicable in United States<\/span><div class=\"guide-content\"><div class=\"filter\">\r\n\r\n\t\t\t\t<input type=\"text\" placeholder=\"Search questions and answers...\" class=\"filter-container__search-field\">\r\n\t\t\t<\/div>\r\n\r\n\t\t\t\r\n\r\n\r\n\t\t\t<ol class=\"custom-counter\">\r\n\r\n\t\t\t\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Has your home state signed and \/ or ratified the ICSID Convention? If so, has the state made any notifications and \/ or designations on signing or ratifying the treaty?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Yes, the United States signed the ICSID Convention on August 27, 1965, and deposited its instrument of ratification on June 10, 1966. The Convention entered into force for the United States on October 14, 1966. The United States has designated the federal district courts as competent courts to hear petitions recognizing and enforcing ICSID awards. See 22 U.S.C. 1650a(b).<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Has your home state signed and \/ or ratified the New York Convention? If so, has it made any declarations and \/ or reservations on signing or ratifying the treaty?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Yes, the United States ratified the New York Convention on September 30, 1970. The Convention entered into force in the United States on December 29, 1970. The United States has made two declarations to the New York Convention: (i) the reciprocity reservation, whereby the Convention only applies in the United States to awards made in the territory of other Contracting States to the Convention; and (ii) the commercial reservation, whereby the Convention only applies to disputes \u201carising out of legal relationships, whether contractual or not, which are considered as commercial under the national law of the State making such declaration.\u201d<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Does your home state have a Model BIT? If yes, does the Model BIT adopt or omit any language which restricts or broadens the investor's rights?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Yes, the United States developed its first Model BIT in 1983 (hereinafter the \u201cU.S. Model BIT\u201d). It was subsequently revised in 1984, 1987, 1991, 1992, 1994, 1998, 2004, and 2012. All versions of the U.S. Model BIT guarantee a minimum standard of treatment for investments, which includes fair and equitable treatment (FET) and full protection and security (FPS), in addition to provisions guaranteeing national and most-favored nation (MFN) treatment and protection from illegal expropriation (direct and indirect).<\/p>\n<p>As the practice of investor-state dispute settlement (or ISDS) has evolved, the United States has introduced greater regulatory authority for itself and its treaty counterparties. For example, the 2004 Model BIT increased the state\u2019s regulatory authority in the areas of financial services, national security, and public policy. The 2012 Model BIT continued this trend by introducing further refinements regarding the state\u2019s ability to regulate, particularly in the areas of the environment and labor law.<\/p>\n<p>The FET and FPS standards reflected in the 2012 U.S. Model BIT are generally designed to provide a basic level of security and stability for foreign investors. While the FET standard is not explicitly defined, the BIT clarifies that FET does not require treatment in addition to or beyond the customary international law minimum standard of treatment, which is considered a narrower formulation of the FET standard compared with other variations not tied to customary international law. The United States typically takes the position that this narrow standard does not protect an investor\u2019s \u201clegitimate expectations,\u201d nor does it encompass acts of court absent a denial of justice, e.g. a lack of due process.<\/p>\n<p>The FPS standard is also interpreted narrowly and in line with the customary international law minimum standard of treatment. FPS is generally understood as a duty of the host state to protect investments from physical harm (physical protection), rather than regulatory changes, political risk, or economic instability (legal protection).<\/p>\n<p>The National Treatment and MFN clauses in the U.S. Model BIT are designed to protect investors against nationality-based discrimination by the government, including state and local government. Under the National Treatment clause, the host state cannot treat foreign investors less favorably than their own (domestic) investors; and under the MFN clause, the host state cannot treat foreign investors less favorably than investors from other states (not party to the treaty).<\/p>\n<p>Some MFN clauses have been interpreted to allow investors to \u201dborrow\u201d more favorable provisions from other investment treaties between the host state and third countries. The United States does not share this view and limits the import of more favorable provisions from other treaties. In the United States-Mexico-Canada Agreement (USMCA), the U.S. explicitly precluded the use of extraneous treaty provisions that establish international dispute resolution procedures or impose substantive obligations.<\/p>\n<p>The U.S. Model BIT adopts the general expropriation standard while maintaining the host state\u2019s right to regulate within its police powers. In general, the standard protects both direct and indirect expropriation. However, in the USMCA, the United States and Mexico limited investors\u2019 rights to raise ISDS claims for indirect expropriation, while Canada withdrew its consent to the ISDS mechanism entirely.<\/p>\n<p>Article 14 of the 2012 U.S. Model BIT addresses non-conforming measures. Under Article 14, the treaty parties may maintain or adopt measures in specific sectors or industries that would otherwise violate the previously stated treaty obligations on national treatment, MFN treatment, performance requirements, and senior management rules, provided these measures and sectors are identified in an annex to the treaty. This provision is designed to ensure policy flexibility for governments while maintaining transparency for investors.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Please list all treaties facilitating investments (e.g. BITs, FTAs, MITs) currently in force that your home state has signed and \/ or ratified. To what extent do such treaties adopt or omit any of the language in your state's Model BIT or otherwise restrict or broaden the investor's rights? In particular: a) Has your state exercised termination rights or indicated any intention to do so? If so, on what basis (e.g. impact of the Achmea decisions, political opposition to the Energy Charter Treaty, or other changes in policy)? b) Do any of the treaties reflect (i) changes in environmental and energy policies, (ii) the advent of emergent technology, (iii) the regulation of investment procured by corruption, and (iv) transparency of investor state proceedings (whether due to the operation of the Mauritius Convention or otherwise). c) Does your jurisdiction publish any official guidelines, notes verbales or diplomatic notes concerning the interpretation of treaty provisions and other issues arising under the treaties?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Treaties in Force:<\/p>\n<p>&nbsp;<\/p>\n<ol>\n<li>Australian Free Trade Agreement (Jan. 1, 2005)<\/li>\n<li>Bahrain Free Trade Agreement (Jan. 11, 2006)<\/li>\n<li>Central American\/Dominican Republic Free Trade Agreement (DR-CAFTA) (March 1, 2006)<\/li>\n<li>Chile Free Trade Agreement (Jan. 1, 2004)<\/li>\n<li>Colombia Trade Protection Agreement (May 15, 2012)<\/li>\n<li>Israel Free Trade Agreement (Sept. 1, 1985)<\/li>\n<li>Jordan Free Trade Agreement (Dec. 17, 2001)<\/li>\n<li>Korea Free Trade Agreement (March 15, 2012, revised Jan. 1, 2019)<\/li>\n<li>Morocco Free Trade Agreement (Jan. 1, 2006)<\/li>\n<li>Oman Free Trade Agreement (Jan. 1, 2009)<\/li>\n<li>Panama Free Trade Agreement (Feb. 1, 2012)<\/li>\n<li>Peru Trade Promotion Agreement (Feb. 1, 2009)<\/li>\n<li>Singapore Free Trade Agreement (Jan. 1, 2004)<\/li>\n<li>United States-Mexico-Canada (USMCA) (July 1, 2020)<\/li>\n<li>US-Albania BIT (Jan. 4, 1998)<\/li>\n<li>US-Argentina BIT (Oct. 20, 1994)<\/li>\n<li>US-Armenia BIT (March 29, 2001)<\/li>\n<li>US-Azerbaijan BIT (Aug. 2, 2001)<\/li>\n<li>US-Bahrain BIT (May 30, 2001)<\/li>\n<li>US-Bangladesh BIT (July 25, 1989)<\/li>\n<li>US-Bulgaria BIT (June 2, 1994)<\/li>\n<li>US-Cameroon BIT (April 6, 1989)<\/li>\n<li>US-Republic of the Congo BIT (Aug. 13, 1994)<\/li>\n<li>US-Democratic Republic of the Congo BIT (July 28, 1989)<\/li>\n<li>US-Croatia BIT (June 20, 2001)<\/li>\n<li>US-Czech Republic BIT (Dec. 19, 1992)<\/li>\n<li>US-Egypt BIT (June 27, 1992)<\/li>\n<li>US-Estonia BIT (Feb. 16, 1997)<\/li>\n<li>US-Georgia BIT (Dec. 11, 1999)<\/li>\n<li>US-Grenada BIT (March 3, 1989)<\/li>\n<li>US-Honduras BIT (July 11, 2001)<\/li>\n<li>US-Jamaica BIT (March 7, 1997)<\/li>\n<li>US-Jordan BIT (June 12, 2003)<\/li>\n<li>US-Kazakhstan BIT (Jan. 12, 1994)<\/li>\n<li>US-Kyrgyzstan BIT (Jan. 12, 1994)<\/li>\n<li>US-Latvia BIT (Dec. 26, 1996)<\/li>\n<li>US-Lithuania BIT (Nov. 22, 2001)<\/li>\n<li>US-Moldova BIT (Nov. 26, 1994)<\/li>\n<li>US-Mongolia BIT (Jan. 1, 1997)<\/li>\n<li>US-Morocco BIT (May 29, 1991)<\/li>\n<li>US-Mozambique BIT (March 3, 2005)<\/li>\n<li>US-Panama BIT (May 30, 1991)<\/li>\n<li>US-Poland BIT (Aug. 6, 1994)<\/li>\n<li>US-Romania BIT (Jan. 15, 1994)<\/li>\n<li>US-Rwanda BIT (Jan. 1, 2012)<\/li>\n<li>US-Senegal BIT (Oct. 25, 1990)<\/li>\n<li>US-Slovakia BIT (Dec. 19, 1992)<\/li>\n<li>US-Sri Lanka BIT (May 1, 1993)<\/li>\n<li>US-Trinidad and Tobago BIT (Dec. 26, 1996)<\/li>\n<li>US-Tunisia BIT (Feb. 7, 1993)<\/li>\n<li>US-Turkey BIT (May 18, 1990)<\/li>\n<li>US-Ukraine BIT (Nov. 16, 1996)<\/li>\n<li>US-Uruguay BIT (Nov. 1, 2006)<\/li>\n<\/ol>\n<p>These BITs and investment agreements typically adopt the terms of the model BIT prevailing at the time. For example, the US-Rwanda BIT (2012) incorporates the language of the 2004 U.S. Model BIT with only minimal changes to reflect Rwanda\u2019s status as a developing nation. The US-Uruguay BIT (2006) also follows the 2004 model closely, with some modifications to reflect Uruguay\u2019s commitment to upholding high labor protections.<\/p>\n<p>To date, the United States has not concluded any BITs based on the 2012 Model BIT. However, the investment chapter of the USMCA (Chapter 14), which entered into force in 2020, reflects many of the principles from the 2012 Model BIT, but with certain variations. For example, the procedural requirements for arbitration and the substantive protections available under the USMCA vary depending on whether the dispute arises from a \u201ccovered government contract\u201d in a \u201ccovered sector\u201d. \u201cCovered sectors\u201d include oil and gas, power generation, telecommunications, transportation and other infrastructure. While investors with covered government contracts enjoy access to efficient dispute resolution mechanism, those without such contracts must pursue domestic remedies in the host state before submitting to arbitration. Separately, the USMCA includes more explicit language affirming a state\u2019s right to adopt and enforce measures to protect legitimate public welfare objectives, such as health, safety, and the environment.<\/p>\n<p>BITs in force for the United States often include annexes that offer exceptions, clarifications, and reservations to the states\u2019 obligations under each BIT. For example, Annex II of the US-Rwanda BIT describes specific sectors for which a party may adopt new or more restrictive measures that do not conform with national treatment or MFN treatment.<\/p>\n<p><strong>a. Has your state exercised termination rights or indicated any intention to do so? If so, on what basis (e.g. impact of the Achmea decisions, political opposition to the Energy Charter Treaty, or other changes in policy)?<\/strong><\/p>\n<p>The United States has not indicated an intention to withdraw from any BIT to which it is a party, nor has the United States indicated an intention to withdraw from any other investment agreement to which it is a party. All BITs currently in force for the United States provide that the BIT will remain in force initially for 10 years and will continue to remain in force indefinitely, unless one of the parties chooses to terminate the BIT at the end of the initial 10-year period or at any other point thereafter by providing one-year\u2019s written notice to the other party. The U.S. is not a party to the Energy Charter Treaty.<\/p>\n<p><strong>b. Do any of the treaties reflect (i) changes in environmental and energy policies, (ii) the advent of emergent technology, (iii) the regulation of investment procured by corruption, and (iv) transparency of investor state proceedings (whether due to the operation of the Mauritius Convention or otherwise).<\/strong><\/p>\n<p>Both the 2004 and 2012 U.S. Model BITs include explicit language preserving a state\u2019s right to regulate for environmental protection without violating the protection against expropriation.<\/p>\n<p>The U.S.-Peru Trade Promotion Agreement contains a sui generis annex titled \u201cUnderstanding Regarding Biodiversity and Traditional Knowledge\u201d whereby the parties recognize the importance of biodiversity and endeavor to share information that \u201cmay have a bearing on the patentability of inventions based on traditional knowledge or genetic resources.\u201d The United States is party to several other free trade agreements (FTAs) that include chapters on the environment, e.g., the US-Australia-FTA, CAFTA-DR, US-Chile-FTA, and US-Korea FTA (KORUS), in which each party commits to not weaken its environmental laws to encourage trade or investment.<\/p>\n<p>In terms of transparency, NAFTA played a pivotal role in incorporating greater transparency mechanisms in ISDS proceedings by requiring that the proceedings be open to the public, that key arbitration documents (awards, decisions and party submissions) be published, and that third-party submissions (amicus curiae) be allowed. The USMCA builds upon NAFTA\u2019s earlier transparency initiatives by requiring arbitrators to comply with the International Bar Association Guidelines on Conflicts of Interest in International Arbitration. Additionally, the agreement forbids arbitrators from acting as counsel or as party-appointed expert or witness in any pending arbitration under the USMCA.<\/p>\n<p>The evolution of transparency provisions in United States treaties has encouraged greater transparency in non-U.S. BITs and under other authorities such as ICSID\u2019s arbitration rules, which were revised in 2022 to increase transparency and broaden public access to those proceedings.<\/p>\n<p><strong>c. Does your jurisdiction publish any official guidelines, notes verbales or diplomatic notes concerning the interpretation of treaty provisions and other issues arising under the treaties?<\/strong><\/p>\n<p>Yes, when needed, the United States has published notes and statements to clarify treaty interpretation. In 2001, the NAFTA Free Trade Commission issued a Note of Interpretation, which confirmed that the standard applicable to FET and FPS under Article 1105 of Chapter 11 was the minimum standard of treatment under customary international law.<\/p>\n<p>The USMCA Free Trade Commission (FTC) has, since the Agreement entered force in 2020, published a series of formal FTC \u201cDecisions\u201d which sometimes include binding interpretations of specific USMCA provisions. For example, FTC Decision No. 2 adopts an interpretation of Article 34.1.4 regarding continued application of certain NAFTA Chapter 19 processes and FTC Decision No. 3 adopts an interpretation of paragraph I of Section C of Annex 6-A addressing eligibility for preferential tariff treatment under Tariff Preference levels for certain textile and apparel goods.<\/p>\n<p>In early 2025, the Free Trade Commission of the Colombia-USA Trade Promotion Agreement issued an interpretive note on the investment provisions within the TPA. The note clarified the TPA\u2019s national treatment and MFN provisions, the interpretation of the minimum standard of treatment, and the TPA\u2019s provision on environmental protection, among other issues.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Does your home state have any legislation \/ instrument facilitating direct foreign investment. If so: a) Please list out any formal criteria imposed by such legislation \/ instrument (if any) concerning the admission and divestment of foreign investment; b) Please list out what substantive right(s) and protection(s) foreign investors enjoy under such legislation \/ instrument; c) Please list out what recourse (if any) a foreign investor has against the home state in respect of its rights under such legislation \/ instrument; and d) Does this legislation regulate the use of third-party funding and other non-conventional means of financing.<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Historically, the United States has maintained a generally open investment environment. While the United States does not have a single overarching foreign investment law, there are a variety of laws, treaties, and institutions that encourage and facilitate foreign investment.<\/p>\n<p><strong>a. Please list out any formal criteria imposed by such legislation \/ instrument (if any) concerning the admission and divestment of foreign investment;<\/strong><\/p>\n<p>There are no specific formal criteria for the admission or divestment of foreign investment in the United States. However, the Foreign Investment and National Security Act of 2007 outlines national security review procedures for foreign investment, and the Committee on Foreign Investment in the United States (CFIUS) reviews foreign investment for national security risks. Certain transactions involving foreign control of U.S. businesses must be reviewed by CFIUS, particularly when the investments involve critical technologies, critical infrastructure, or sensitive personal data of U.S. citizens. Critical technologies include items relating to national security, chemical and biological weapons, and emerging technologies. Critical infrastructure includes data centers, airports, maritime points, and certain aspects of telecommunication. Sensitive personal data includes geolocation data, biometrics, genetic testing, and personal information used for insurance, among other categories.<\/p>\n<p>If CFIUS determines that a foreign investment presents unacceptable national security risks, it may recommend mitigation measures, or, in extreme cases, order divestment of the investment.<\/p>\n<p>In 2018, the United States Congress passed the Foreign Investment Risk Review Modernization Act (FIRRMA) with the aim of strengthening and modernizing CFIUS. FIRRMA significantly expanded CFIUS\u2019s jurisdiction to review a wider range of foreign transactions, such as purchases of real estate near military bases or other government facilities. More recently, the U.S. Department of the Treasury issued final rules in November 2024 that (i) expanded the list of military installations covered by CFIUS\u2019s real estate jurisdiction and (ii) strengthened CFIUS\u2019s compliance and enforcement authorities (including with respect to penalties and required information).<\/p>\n<p>In 2025, the U.S. government introduced the \u201cAmerica First Investment Policy\u201d, through which the government invited investment from traditional allies while seeking to address threats posed by China-related transactions. The policy noted that it would \u201cuse all necessary legal instruments,\u201d including CFIUS, to restrict China-affiliated investors from access to U.S. technology, critical infrastructure, healthcare and other sectors, as well as to protect U.S. farmland and real estate near \u201csensitive facilities.\u201d The policy indicated a desire to strengthen CFIUS\u2019s overall authority over \u201cgreenfield\u201d investments, and to expand its jurisdiction over \u201cemerging and foundational technologies.\u201d<\/p>\n<p><strong>b. Please list out what substantive right(s) and protection(s) foreign investors enjoy under such legislation \/ instrument;<\/strong><\/p>\n<p>While not protected under a specific piece of national legislation, foreign investors enjoy the legal protections offered to them through applicable foreign investment instrument(s). They also enjoy protections against discrimination and access to the United States court system to pursue any right to relief under U.S. law.<\/p>\n<p><strong>c. Please list out what recourse (if any) a foreign investor has against the home state in respect of its rights under such legislation \/ instrument; and<\/strong><\/p>\n<p>Foreign investors can possibly seek recourse against the United States under a bilateral or multilateral investment treaty, should one apply. They can also challenge adverse regulatory decisions in United States courts or challenge decisions through regulatory agencies such as the Securities and Exchange Commission, Federal Trade Commission, and the International Trade Commission.<\/p>\n<p><strong>d. Does this legislation regulate the use of third-party funding and other non-conventional means of financing.<\/strong><\/p>\n<p>Third-party funding in international arbitration is not regulated in the United States. However, some individual states of the United States encourage attorneys to disclose funding arrangements when used in connection with state court proceedings. In 2018, Wisconsin became the first state to require the disclosure of third-party funding agreements. Indiana and West Virginia passed similar disclosure laws in 2023 and 2024. In 2025, Kansas amended its civil procedure rules to require reporting of third-party litigation funding agreements to the court, and Georgia enacted a law in early 2026 establishing registration and disclosure requirements for litigation funders. Many arbitral institutions, such as the International Chamber of Commerce (ICC) and the International Centre for the Settlement of Investment Disputes (ICSID), require the disclosure of third-party funding arrangements in their arbitration rules.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Has your home state appeared as a respondent in any investment treaty arbitrations? If so, please outline any notable practices adopted by your state in such proceedings (e.g. participation in proceedings, jurisdictional challenges, preliminary applications \/ objections, approach to awards rendered against it, etc.)<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Yes, the United States has appeared as a respondent in numerous investor-state arbitrations initiated under agreements like the USMCA, NAFTA, CAFTA-DR, and several others. The Office of International Claims and Investment Disputes within the U.S. Department of State is the office that represents the United States in these arbitrations. The United States has prevailed in all concluded investor-state arbitrations in which it has appeared as respondent and there are no publicly known investment treaty awards against the United States.<\/p>\n<p>The United States also actively participates as a non-disputing treaty party (NDP) in investor-state arbitrations arising under treaties to which the United States is a party. To date, it has filed nearly 100 NDP submissions addressing its interpretation of these investment treaties. In this capacity, the United States frequently addresses jurisdictional topics, such as its interpretation of the three-year limitations period found in certain BITs. It also makes submissions on the interpretation of substantive provisions such as the minimum standard of treatment, MFN treatment, and expropriation.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Have any significant court decisions\/arbitral awards been issued in the last year involving your country (as a party or interested party)?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>In the last year, the United States acted as an interested treaty party in Access Business Group LLC v. United Mexican States (ICSID Case No. ARB\/23\/15), in which the tribunal issued an award (dispatched 21 November 2025) declining jurisdiction and addressing, among other issues, questions relating to the scope of USMCA Annex 14-C legacy claims.<\/p>\n<p>Separately, the U.S. Supreme Court ruled in CC\/Devas (Mauritius) Ltd. v. Antrix Corp. Ltd., 605 U.S. 223 (2025) that the Foreign Sovereign Immunities Act (FSIA) \u2013 the law governing jurisdiction over sovereigns in U.S. courts &#8212; does not have a \u201cminimum contacts\u201d requirement.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Has jurisdiction been used to seat non-ICSID investment treaty proceedings? If so, please provide details.<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Yes, the United States is regularly used as the seat of non-ICSID investment treaty proceedings, including ad hoc arbitrations under the rules of the International Chamber of Commerce (\u201cICC\u201d), UNCITRAL, and the ICSID Additional Facility. See, e.g., BG Group plc v. Republic of Arg., 572 U.S. 25, 30 (2014) (concerning investor-state arbitration under the UNCITRAL Rules seated in Washington, D.C.); Beijing Shougang Mining Inv. Co. v. Mongolia, 11 F.4th 144, 147 (2d Cir. 2021) (concerning investor-state arbitration seated in New York).<\/p>\n<p>Unlike parties to ICSID proceedings, parties to non-ICSID proceedings seated in the United States have access to remedies under the New York Convention and the Federal Arbitration Act (\u201cFAA\u201d). See State of Libya v. Strabag SE, 2021 WL 4476771 (D.D.C. Sept. 30, 2021) (parties and tribunal determined the \u201clegal seat\u201d of the arbitration to be Washington, D.C., \u201cas allowed by the Additional Facility Rules of the ICSID, and thus both parties agreed that the [FAA] would govern the Arbitration\u201d).<\/p>\n<p>The New York Convention mandates the recognition and enforcement of foreign arbitration awards, ensuring that U.S. courts give effect to arbitration decisions made in other signatory countries. The FAA is a domestic statute that also authorizes U.S. courts to enforce arbitration awards in the United States with limited grounds for challenging the awards or their enforcement. Pursuant to these authorities, U.S. courts are not authorized to review the merits of an award. The review is limited to the grounds stated in the New York Convention and in the FAA.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Please set out (i) the interim and \/ or preliminary measures available in your jurisdiction in support of investment treaty proceedings, and (ii) the court practice in granting such measures.<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>In litigation not involving investor-state disputes, courts in the United States have discretion to grant various forms of interim relief, including pre-award attachments, preliminary injunctions, and anti-suit injunctions. Access to such provisional measures in connection with investment treaty proceedings is extremely limited. Federal courts that have considered requests for interim relief in the context of investment treaty proceedings have been reluctant to issue such remedies out of concern for disturbing accepted principles of comity and out of respect for the independence of the arbitration process.<\/p>\n<p>In one notable decision, the Court of Appeals for the District of Columbia Circuit allowed Spain to pursue anti-suit relief in Dutch and Luxembourg courts even though a lower court had previously enjoined Spain from doing so. See NextEra Energy Glob. Holdings B.V. v. Kingdom of Spain, 112 F.4th 1088, 1115 &#8211; 1116 (D.C.Cir. 2024). The Court of Appeals emphasized injunctions against foreign sovereigns \u201cstrain the crucial principles of comity that regulate and moderate the social and economic intercourse between independent nations.\u201d The Court further emphasized that that courts should focus on whether the foreign litigation \u201cthreatens a vital United States policy\u201d and whether \u201cdomestic interests outweigh concerns of international comity.\u201d<\/p>\n<p>In the context of pending ICSID arbitrations, U.S. courts are equally reluctant to interfere with the arbitral process by granting interim relief. However, courts may grant interim relief to enforce decisions made in the arbitration. For example, when provisional stays have been entered by ICSID, U.S. courts have granted stays in their own proceedings on the condition that such stays last only as long as reasonably necessary in light of the ICSID proceedings. See, e.g., Tethyan Copper Co. Pty v. Islamic Republic of Pak., 590 F. Supp. 3d 262, 266 (D.D.C. 2022).<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Please set out any default procedures applicable to appointment of arbitrators and also the Court's practice of invoking such procedures particularly in the context of investment treaty arbitrations seated in your home state.<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>In the context of commercial arbitration, the courts of the United States have the power to appoint arbitrators under Section 5 of the FAA, including when the arbitration agreement at issue does not specify the method of arbitrator selection, the selection process fails, or an arbitrator resigns while an arbitration is pending. See, e.g., Northrop Grumman Ship Sys. v. Ministry of Def. of the Republic of Venez., 2003 U.S. Dist. LEXIS 29844, *4-5 (S.D. Miss. Apr. 10, 2003). As regards ISDS proceedings, however, we have not found a case of a U.S. court appointing an arbitrator.<\/p>\n<p>Apart from arbitrator selection, U.S. courts generally defer to the applicable arbitral rules of procedure e.g. ICSID\u2019s Additional Facility Rules. See, e.g., Stati v. Republic of Kaz., 302 F. Supp. 3d 187, 207-208 (D.D.C. 2018) (dismissing argument that Stockholm Chamber of Commerce failed to comply with its own rules relating to the appointment of arbitrators); see also Belize Bank Ltd. v. Gov\u2019t of Belize, 191 F. Supp. 3d 26, 36-37 (D.D.C. 2016) (rejecting Belize\u2019s argument that arbitral tribunal was not properly constituted under the rules of the London Court of International Arbitration). This practice is consistent with the United States\u2019 general respect for the independence of the arbitral institution and the institution\u2019s authority to appoint its own arbitrators and govern the arbitration. See, e.g., Mundiales v. Bolivarian Republic of Venez., 2023 WL 3453633, at *6 (D.D.C. May 15, 2023) (ad hoc annulment committee properly appointed by ICSID \u201cacted in accordance with ICSID\u2019s procedural rules\u201d); see also Pao Tatneft v. Ukraine, 2020 WL 4933621, *7-9 (D.D.C. Aug. 24, 2020) (rejecting argument of arbitrator partiality in context of undisclosed appointment).<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">In the context of awards issued in non-ICSID investment treaty arbitrations seated in your jurisdiction, please set out (i) the grounds available in your jurisdiction on which such awards can be annulled or set aside, and (ii) the court practice in applying these grounds.<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>U.S. courts rarely set aside arbitration awards in general, including non-ICSID arbitration awards. The United States has a strong and supportive policy toward arbitration pursuant to which U.S. courts apply a very limited and narrow standard when reviewing and potentially vacating arbitration awards.<\/p>\n<p>Section 10 of the FAA permits U.S. courts to vacate an award if any of one of the following four grounds exists: (i) the award was \u201cprocured by corruption, fraud, or undue means\u201d; (ii) there was \u201cevident partiality or corruption in the arbitrators\u201d; (iii) the arbitrators refused to postpone the hearing \u201cupon sufficient cause shown\u201d, refused to hear relevant and material evidence, or otherwise prejudiced the rights of any party; or (iv) the arbitrators exceeded their powers or \u201cso imperfectly executed them that a mutual, final, and definite award . . . was not made.\u201d 9 U.S.C. \u00a7 10. These grounds have been interpreted as follows:<\/p>\n<p>Corruption, Fraud, or Undue Means: To vacate an award for corruption, fraud or undue means, a movant must show by \u201cclear and convincing evidence\u201d that the award resulted because its opponent \u201cactually engaged in fraudulent conduct or used undue means during the course of the arbitration.\u201d Importantly, a movant must show that the alleged misconduct could not have been discovered before or during the arbitration by means of reasonable diligence, and that the misconduct \u201cmaterially related\u201d to an issue in the arbitration. See, e.g., ARMA, S.R.O. v. BAE Sys. Overseas, 961 F. Supp. 2d 245, 254 (D.D.C. 2013).<\/p>\n<p>Evident Partiality: Evident partiality as a basis for vacatur carries a \u201cheavy\u201d burden. The movant must \u201cestablish specific facts that indicate improper motives on the part of the arbitrator.\u201d Al-Harbi v. Citibank, 85 F.3d 680, 683 (D.C. Cir. 1996). Although arbitrators are not to be held to the same standards as court judges because arbitrators are often \u201cof the marketplace,\u201d they still must avoid the \u201cappearance of bias.\u201d Commonwealth Coatings Corp. v. Continental Cas. Co., 393 U.S. 145, 151 (1968). Accordingly, the \u201conerous standard for vacatur\u201d is not met when, for example, a claim of evident partiality rests entirely on an arbitrator\u2019s temporary position as a non-executive member of the board of a global financial institution that had invested in entities related to the arbitration. See Republic of Arg. v. AWG Grp. Ltd., 211 F. Supp. 3d 335, 352 (D.D.C. 2016)<\/p>\n<p>Prejudice to Rights: An award may potentially be vacated if a tribunal refused to hear \u201cmaterial evidence, or otherwise employed an improper procedure.\u201d The focus of the inquiry is limited to whether the arbitral tribunal granted the parties \u201ca fundamentally fair hearing\u201d and does not mean that an arbitrator must \u201cfollow all of the niceties of the federal rules of evidence.\u201d Mesa Power Grp., LLC v. Gov&#8217;t of Can., 255 F. Supp. 3d 175, 184 (D.D.C. 2017).<\/p>\n<p>Excess of Arbitrator Power: To vacate an award for an excess of power, a party must show that an arbitrator has strayed so far from the interpretation and application of the relevant agreement that the arbitrator has \u201ceffectively dispensed his [or her] own brand of industrial justice.\u201d This is a very difficult standard to meet as it is accorded \u201cthe narrowest of readings.\u201d U.S. courts do not have the power to substitute their own \u201cjudicial resolution of a dispute for an arbitral one,\u201d even if that arbitrator has committed \u201cserious error.\u201d AWG Grp. Ltd., 211 F. Supp. 3d at 357 (D.D.C. 2016).<\/p>\n<p>Manifest Disregard of the Law (debated): Some U.S. courts have recognized \u201cmanifest disregard of the law\u201d as an additional (judge-made) basis to vacate an arbitral award where the tribunal knew of a clearly governing legal principle and deliberately ignored it\u2014not merely where the tribunal committed legal error. The standard is exceptionally demanding and typically requires a showing that (i) the governing law was clear and well defined, (ii) the arbitrators were aware of that law, and (iii) the award reflects an intentional decision to disregard it. The continued existence of \u201cmanifest disregard\u201d as a vacatur ground is subject to debate by the lower courts. See United States Trinity Energy Servs., L.L.C. v. Se. Directional Drilling, L.L.C., 135 F.4th 303, 309 (5th Cir. 2025) (rejecting \u201cmanifest disregard\u201d of the law as a basis for vacatur), but see Wachovia Sec., LLC v. Brand, 671 F.3d 472, 483 (4th Cir. 2012) (holding that \u201cmanifest disregard\u201d continues to exist as an independent ground for review).<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">In the context of ICSID awards, please set out: (i) the grounds available in your jurisdiction on which such awards can be challenged and (ii) the court practice in applying these grounds.<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Unlike non-ICSID awards, there is little basis to challenge or set-aside an ICSID award in the United States. Under Article 53 of the ICSID Convention, a party may challenge an ICSID award \u201conly through proceedings at the Centre and not collaterally in the courts of member states.\u201d Mobil Cerro Negro, Ltd. v. Bolivarian Republic of Venez., 863 F.3d 96, 101-102 (2d Cir. 2017). ICSID awards must be enforced pursuant to Article 54 of the ICSID Convention and 22 U.S.C. \u00a7 1650a(a), which states in relevant part: \u201cAn award of an arbitral tribunal rendered pursuant to chapter IV of the convention shall create a right arising under a treaty of the United States. The pecuniary obligations imposed by such an award shall be enforced and shall be given the same full faith and credit as if the award were a final judgment of a court of general jurisdiction of one of the several States.\u201d<\/p>\n<p>Pursuant to Section 1650a, the courts of the United States are \u201cnot permitted to examine an ICSID award\u2019s merits, its compliance with international law, or the ICSID tribunal\u2019s jurisdiction to render the award.\u201d Mobil Cerro, 863 F.3d at 102. Courts \u201cmay do no more than examine the judgment\u2019s authenticity and enforce the obligations imposed by the award.\u201d Id. The way to set aside an ICSID award is through ICSID\u2019s annulment process. See Valores Mundiales, S.L. v. Bolivarian Republic of Venezuela, 87 F.4th 510 (D.C. Cir. 2023).<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">To what extent can sovereign immunity (from suit and\/or execution) be invoked in your jurisdiction in the context of enforcement of investment treaty awards.<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>The concept of sovereign immunity in the United States is governed exclusively by the Foreign Sovereign Immunities Act (\u201cFSIA\u201d). See 28 U.S.C. \u00a7 1602 et seq.; Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 443 (1989). The FSIA establishes a default rule that foreign states are immune from the jurisdiction of U.S. courts unless the action falls within one of the specific exceptions set out in the statute. 28 U.S.C. \u00a7\u00a7 1604-1607; Belize Soc. Dev., Ltd. v. Government of Belize, 794 F.3d 99, 101 (D.C. Cir. 2015). In 2025, the Supreme Court held that personal jurisdiction exists under the FSIA when an FSIA exception applies and service is proper, and that the FSIA does not require a separate \u201cminimum contacts\u201d analysis beyond the statute\u2019s requirements. CC\/Devas (Mauritius) Ltd. v. Antrix Corp. Ltd., 605 U.S. 223 (2025).<\/p>\n<p>Such immunity exceptions arise in cases in which: \u201cthe foreign state has waived its immunity either explicitly or by implication,\u201d 28 U.S.C. \u00a7 1605(a)(1); the action is based on a \u201ccommercial activity\u201d in the United States or on activity of the foreign state \u201celsewhere and that act causes a direct effect in the United States,\u201d \u00a7 1605(a)(2); and \u201cmoney damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment,\u201d \u00a7 1605(a)(5).<\/p>\n<p>Importantly, for purposes of the enforcement of arbitration awards rendered in connection with ISDS proceedings, the FSIA also provides the following exception to sovereign immunity:<\/p>\n<p style=\"padding-left: 40px\">A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case in which the action is brought to confirm an award made pursuant to an agreement to arbitrate, if [the] award is or may be governed by a treaty or other international agreement in force for the United States calling for the recognition and enforcement of arbitral awards[.]<\/p>\n<p style=\"padding-left: 40px\">28 U.S.C. \u00a7 1605(a)(6).<\/p>\n<p>To satisfy the FSIA\u2019s arbitration exception, a party must show (i) the existence of an arbitration agreement, (ii) an arbitration award, and (iii) a treaty governing the award. See Zhongshan Fucheng Indus. Inv. Co. v. Fed. Republic of Nigeria, 112 F.4th 1054, 1058 (D.C. Cir. 2024); see also Deutsche Telekom, A.G. v. Republic of India, 155 F.4th 694 (D.C. Cir. 2025). If this showing is met and jurisdiction is established under the arbitration exception, the award holder may enforce both ICSID and non-ICSID awards.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Please outline the grounds on which recognition and enforcement of ICSID awards can be resisted under any relevant legislation or case law. Please also set out any notable examples of how such grounds have been applied in practice.<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>In the United States, the ICSID Convention implementing statute provides:<\/p>\n<p style=\"padding-left: 40px\">An award of an arbitral tribunal rendered pursuant to chapter IV of the convention shall create a right arising under a treaty of the United States. The pecuniary obligations imposed by such an award shall be enforced and shall be given the same full faith and credit as if the award were a final judgment of a court of general jurisdiction of one of the several States. The Federal Arbitration Act shall not apply to enforcement of awards rendered pursuant to the convention.<\/p>\n<p style=\"padding-left: 40px\">22 U.S.C. \u00a7 1650a(a).<\/p>\n<p>The grounds on which the recognition and enforcement of ICSID awards can be resisted are extremely limited because the statute requires that federal courts grant ICSID awards \u201cthe same full faith and credit\u201d as a final judgment of a court of general jurisdiction of one of the several U.S. states, and expressly precludes the kind of judicial review available under the FAA. Courts in the United States typically can \u201cdo no more than examine the judgment\u2019s authenticity and enforce the obligations imposed by the award.\u201d Mobil Cerro Negro, 863 F.3d at 102.<\/p>\n<p>However, defenses to the application of the full faith and credit requirement exist and could potentially be asserted to resist recognition and enforcement. Such defenses include those that are generally available to challenge state court awards, including the rendering court\u2019s lack of jurisdiction over the judgment debtor and the expiration of the applicable statute of limitations within which a judgment must be enforced, which is a matter governed by state law. Furthermore, an award debtor potentially has other defenses at its disposal when the award creditor seeks to execute the judgment such as those set forth in the FSIA and state execution laws. See, e.g., Article 52 of the New York Civil Practice Law and Rules (governing enforcement of money judgments).<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Please outline the practice in your jurisdiction, as requested in the above question, but in relation to non-ICSID investment treaty awards.<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>In the United States, the enforcement of non-ICSID awards can be resisted to the same extent as commercial arbitration awards. As such, enforcement of non-ICSID awards may be challenged on the grounds contained in the New York Convention, which is incorporated into Chapter 2 of the FAA. Although enforcement of an award under the New York Convention is legally distinct from enforcement under the FAA, the grounds for refusing enforcement are largely the same.<\/p>\n<p>Apart from the grounds expressly provided for in the New York Convention, parties may challenge enforcement based on the award creditor\u2019s failure to comply with the requirements of the New York Convention. To obtain the recognition and enforcement of an award under the New York Convention, a party must provide the \u201cduly authenticated original award or a duly certified copy thereof\u201d, and the \u201coriginal agreement [in which the parties agreed to arbitration] or a duly certified copy thereof.\u201d New York Convention, Article IV(1). If either the award or the agreement is not \u201cmade in an official language of the country in which the award is relied upon,\u201d the party seeking recognition and enforcement must provide a translation that is \u201ccertified by an official or sworn translator or by a diplomatic or consular agent.\u201d Failure to comply with these requirements could render the award unenforceable or at least delay enforcement until a new enforcement petition is submitted.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">To what extent does your jurisdiction permit awards against states to be enforced against state-owned assets or the assets of state-owned or state-linked entities?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>In the United States, the enforcement of arbitral awards against state-owned assets under the FSIA is limited. Section 1610(b) provides in relevant part:<\/p>\n<p style=\"padding-left: 40px\">[A]ny property in the United States of an agency or instrumentality of a foreign state engaged in commercial activity in the United States shall not be immune from attachment in aid of execution, or from execution, upon a judgment entered by a court of the United States or of a State after the effective date of this Act, if\u2014<\/p>\n<p style=\"padding-left: 40px\">(1) the agency or instrumentality has waived its immunity from attachment in aid of execution or from execution either explicitly or implicitly, notwithstanding any withdrawal of the waiver the agency or instrumentality may purport to effect except in accordance with the terms of the waiver, or<\/p>\n<p style=\"padding-left: 40px\">(2) the judgment relates to a claim for which the agency or instrumentality is not immune by virtue of section 1605(a)(2), (3), or (5), 1605(b), or 1605A of this chapter, regardless of whether the property is or was involved in the act upon which the claim is based.<\/p>\n<p style=\"padding-left: 40px\">28 U.S.C. \u00a7\u202f1610(b)(1)-(2).<\/p>\n<p>As reflected in the text of the statute, foreign states and state-owned entities are presumed separate. As such, courts of the United States typically prohibit award creditors from enforcing ISDS awards against assets of state-owned entities not involved in the dispute. The presumption of separateness is addressed by the Supreme Court of the United States in First National City Bank v. Banco Para El Comercio Exterior de Cuba (\u201cBanec\u201d), 462 U.S. 611 (1983). Banec established that government instrumentalities established as juridical entities distinct and independent from their sovereign should normally be treated as such.<\/p>\n<p>The presumption of separateness can be overcome upon a showing that the state-owned entity is the alter ego of the foreign sovereign. This issue has been litigated extensively, and most recently in a series of landmark cases concerning Petroleos de Venezuela SA (\u201cPDVSA\u201d), in which judgment creditors of Venezuela sought to seize PDVSA\u2019s assets in the United States under the theory that PDVSA is the alter ego of Venezuela. Both the District Court for the District of Delaware and the Court of Appeals for the Third Circuit found that PDVSA is the alter ego of Venezuela, thereby making PDVSA\u2019s assets available as a potential source of funds from which judgment creditors of both PDVSA and Venezuela can collect. See Crystallex Int&#8217;l Corp. v. Bolivarian Republic of Venez., 2024 WL 5244837 (D. Del. 2024); OI Eur. Grp. B. V. v. Bolivarian Republic of Venezuela, 73 F.4th 157, 172-74 (3d Cir. 2023); Crystallex Int&#8217;l Corp. v. Bolivarian Republic of Venezuela, 932 F.3d 126, 140-50 (3d Cir. 2019). To establish that a state-owned entity is an alter-ego for purposes of enforcement, courts typically assess the state\u2019s level of control over the state-owned entity.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Please highlight any recent trends, legal, political or otherwise, that might affect your jurisdiction's use of arbitration generally or ISDS specifically.<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>In 2022, the U.S. Supreme Court limited the ability of ISDS parties to obtain discovery via 28 U.S.C. \u00a7 1782 in the U.S. for use in ISDS proceedings. ZF Automotive US, Inc. v. Luxshare, Ltd., 596 U.S. 619 (2022). Since then, the lower courts have reinforced that decision by denying Section 1782 applications in the ISDS context. In Webuild v. WSP USA, the Second Circuit held that the particular ICSID tribunal at issue was not a \u201cforeign or international tribunal\u201d within the meaning of Section 1782.<\/p>\n<p>The United States is approaching the first Six-Year Joint Review of the USMCA on July 1, 2026. The United States Trade Representative (USTR) formally commenced domestic consultations, including a Federal Register notice in September 2025 and a public hearing held in December 2025, in preparation for the 2026 Joint Review. The outcome of these renegotiations remains uncertain.<\/p>\n<p>Broadly speaking, the U.S. government has issued a number of executive actions in the energy and regulatory space in the past year that may affect foreign investors operating in or entering the U.S. market. For example, in January 2025, President Trump issued the Executive Order on Unleashing American Energy, which pauses grants and loans under the Inflation Reduction Act and the Infrastructure Investment and Jobs Act, among other directives.<\/p>\n<p>In addition, the Administration issued the \u201cAmerica First Trade Policy\u201d memorandum (Jan. 20, 2025) and the \u201cAmerica First Investment Policy\u201d memorandum (Feb. 21, 2025), each emphasizing national-security and domestic-policy priorities in trade and investment policy. Taken together, these measures may contribute to a less certain environment for certain categories of foreign investment in the United States and could be relevant to future treaty-based disputes.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Please highlight any other investment treaty related developments in your jurisdiction to the extent not covered above (for e.g., impact of the Achmea decisions, decisions concerning treaty interpretation, appointment of and challenges to arbitrators, immunity of arbitrators, third-party funding and other non-conventional means of financing such proceedings).<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>In August 2024, the Court of Appeals for the District of Columbia addressed the implications of the Court of Justice of the European Union\u2019s Achmea and Komstroy decisions in a consolidated appeal involving the enforcement of intra-European Union arbitration awards against Spain. NextEra Energy Glob. Holdings B.V. v. Kingdom of Spain, 112 F.4th 1088 (D.C. Cir. 2024). The court\u2019s decision reaffirmed that the courts of the United States can assert jurisdiction over intra-EU arbitration awards under the FSIA, despite the Achmea and Komstroy rulings. The court also rejected Spain\u2019s jurisdictional objections, ruling that the existence of an arbitration agreement\u2014not its validity\u2014determines jurisdiction under the FSIA\u2019s arbitration exception. The decision confirms the willingness of the courts of the United States to enforce intra-EU investment arbitration awards, despite European opposition. Spain has petitioned for certiorari from the D.C. Circuit\u2019s NextEra decision and on October 6, 2025 the Supreme Court invited the Solicitor General to file a brief expressing the views of the United States; the petition remains pending.<\/p>\n<p>More recently, the D.C. Circuit continued to apply that same enforcement framework in a BIT award enforcement case. The court again applied the FSIA arbitration-exception \u201cjurisdictional facts\u201d analysis and underscored the importance of distinguishing jurisdictional objections (e.g., challenges to the existence of an arbitration agreement) from defenses going to the scope of consent or other merits issues raised under the New York Convention. Deutsche Telekom, A.G. v. Republic of India, 155 F.4th 694 (D.C. Cir. 2025).<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\r\n<div class=\"word-count-hidden\" style=\"display:none;\">Estimated word count: <span class=\"word-count\">7583<\/span><\/div>\r\n\r\n\t\t\t<\/ol>\r\n\r\n<script type=\"text\/javascript\" src=\"\/wp-content\/themes\/twentyseventeen\/src\/jquery\/components\/filter-guides.js\" async><\/script><\/div>"}},"_links":{"self":[{"href":"https:\/\/my.legal500.com\/guides\/wp-json\/wp\/v2\/comparative_guide\/132258","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/my.legal500.com\/guides\/wp-json\/wp\/v2\/comparative_guide"}],"about":[{"href":"https:\/\/my.legal500.com\/guides\/wp-json\/wp\/v2\/types\/comparative_guide"}],"wp:attachment":[{"href":"https:\/\/my.legal500.com\/guides\/wp-json\/wp\/v2\/media?parent=132258"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}