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Litigating the Use of Force: Reflections on the Interaction Between Investor-State Dispute Settlement and Other Forms of International Dispute Settlement in the Context of the Conflict in Ukraine

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International Investment Law and the Law of Armed Conflict

Part of the book series: European Yearbook of International Economic Law ((Spec. Issue))

Abstract

The situation in Ukraine has not only led to close scrutiny by the principal organs of the United Nations, it has led and will continue for some years to lead to close scrutiny by a plethora of international courts and tribunals that have been seized of disputes arising out of the conflict. Ukraine has launched no fewer than nine inter-State proceedings against Russia, in multiple fora. To date, it appears not to have taken advantage of the possibility of inter-State proceedings under the bilateral investment treaty between Ukraine and Russia, however. Instead, Ukraine appears to have encouraged Ukrainian companies to commence proceedings against Russia directly. There are currently nine known investor-State arbitrations based on the Ukraine-Russia BIT arising out of Russia’s actions in Crimea. This chapter (a) provides an overview of the landscape of the investment arbitration and other legal proceedings arising out of the conflict; (b) highlights some notable features of and key legal issues at play in the investment claims arising out of the conflict in Ukraine; and (c) discusses the potential interactions between the different legal proceedings arising out of the conflict in Ukraine.

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Notes

  1. 1.

    Letter dated 28 February 2014 from the Permanent Representative of Ukraine to the United Nations addressed to the President of the Security Council, UN Doc. S/2014/136.

  2. 2.

    Agreement between the Russian Federation and the Republic of Crimea on the Accession of the Republic of Crimea to the Russian Federation and on Forming New Constituent Entities Within the Russian Federation (Accession Agreement), Article 10, 18 March 2014, http://www.kremlin.ru/events/president/news/20605 (Russian language); “Putin signs reunification laws for Crimea, Sevastopol”, Sputnik News, https://sputniknews.com/voiceofrussia/news/2014_03_21/Putin-sign-decree-to-set-up-Crimean-Federal-district-5901/.

  3. 3.

    Article 1 of the Accession Agreement, 18 March 2014. President of Russia, “Agreement on the accession of the Republic of Crimea to the Russian Federation signed”, http://en.kremlin.ru/events/president/news/20604.

  4. 4.

    UNGA Res. 68/262, Territorial integrity of Ukraine, United Nations General Assembly 27 March 2014, preambular para. 7.

  5. 5.

    UNGA Res. 68/262, Territorial integrity of Ukraine, United Nations General Assembly 27 March 2014, operative para. 5.

  6. 6.

    UNGA Res. 68/262, Territorial integrity of Ukraine, United Nations General Assembly 27 March 2014, operative para. 1.

  7. 7.

    UNGA Res. 68/262, Territorial integrity of Ukraine, United Nations General Assembly 27 March 2014, operative para. 2.

  8. 8.

    UNGA Res. 68/262, Territorial integrity of Ukraine, United Nations General Assembly 27 March 2014, operative para. 6.

  9. 9.

    See, for example, Ku (2014) and McGarry (2016, 2017).

  10. 10.

    United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3 (UNCLOS).

  11. 11.

    Ukraine’s ICJ application alleges that Russia’s conduct violates fundamental principles of international law, including the International Convention for the Suppression of the Financing of Terrorism and the International Convention on the Elimination of All Forms of Racial Discrimination. There are limited parallels between the ICJ proceedings and the investment disputes, so the ICJ proceeding is not considered further here.

  12. 12.

    There are currently a total of five proceedings between Russia and Ukraine at the WTO, three brought by Ukraine and two by Russia, launched between May 2015 and October 2017: WTO, Ukraine: Anti-Dumping Measures on Ammonium Nitrate, WT/DS493; WTO, Russia: Measures Affecting the Importation of Railway Equipment and Parts thereof, WT/DS499; WTO, Russia: Measures Concerning Traffic in Transit, WT/DS512; WTO, Ukraine: Measures relating to Trade in Goods and Services, WT/DS525; and WTO, Russia: Measures Concerning the Importation and Transit of Certain Ukrainian products, WT/DS532.

  13. 13.

    In England, aspects of the conflict have been litigated in the English Commercial Court through a case brought by Law Debenture Trust Corporation PLC, a firm of professional trustees acting on the direction of Russia, against Ukraine (Law Debenture Trust Corporation PLC v Ukraine [2017] EWHC 655 (Comm)). The Netherlands will in due course play host to domestic prosecutions of those responsible for shooting down flight MH17.

  14. 14.

    The Agreement between the Government of the Russian Federation and the Cabinet of Ministers of Ukraine on the Encouragement and Mutual Protection of Investments (signed 27 November 1998, entered into force 27 January 2000) (Ukraine-Russia BIT).

  15. 15.

    The BIT does not stipulate a fair and equitable treatment obligation nor does it contain a full protection and security obligation.

  16. 16.

    See Roberts (2014).

  17. 17.

    For example, Republic of Italy v Republic of Cuba, Interim Award (Ad Hoc Arbitral Tribunal 15 March 2005); Republic of Italy v Republic of Cuba, Final Award (Ad Hoc Arbitral Tribunal, 15 January 2008). The State-to-State dispute resolution mechanism has also been used (though by host States) in Republic of Peru v Republic of Chile (see Lucchetti, S.A. v Republic of Peru, ICSID Case No. ARB/03/4, Award (7 February 2005), para. 7) and Republic of Ecuador v United States of America, PCA Case No. 2012-5, Award (29 September 2012).

  18. 18.

    International Law Association, Final Report of the Committee on the Formation of Customary (General) International Law, Statement of Principles Applicable to the Formation of General Customary International Law, Report of the 69th Conference, London, 2000, at p. 14.

  19. 19.

    Though see Sect. 4.1.1 below for an explanation of the position Ukraine has taken in its non-disputing party submissions.

  20. 20.

    Compare Reisman (2012) and Roberts (2014), for opposing views on this.

  21. 21.

    The impact that such a finding would have on tribunals constituted pursuant to the investor-State dispute resolution mechanism in Article 9 is, however, by no means certain. There is no explicit hierarchy in the BIT between Articles 9 and 10. It is unclear whether the establishment of a tribunal pursuant to Article 10 would preclude the establishment of any tribunals covering the same subject matter as a dispute brought pursuant to Article 9. And it is unclear whether an Article 10 tribunal’s interpretation of the BIT would bind that of any subsequently constituted Article 9 tribunal.

  22. 22.

    The number of arbitrations involving the same issues raises the possibility of inconsistent judgments (as famously in Ronald S. Lauder v Czech Republic, UNCITRAL, Final Award (3 September 2001) and CME Czech Republic B.V. v The Czech Republic, UNCITRAL, Final Award (14 March 2003)). That said, from the reporting of the decisions already rendered it would appear that only one significant inconsistency exists, in the form of the apparently opposing conclusions of the Everest and Ukrnafta and Stabil tribunals on the application of the “conformity” requirement on the definition of “territory” in the BIT. Inconsistencies like these are often cited as detracting from the legitimacy of investor-State dispute settlement as a system. See e.g. Franck (2005), and a word of caution in Feldman (2017). In this case, Ukraine may have concluded that inconsistency is preferable to a consistent but adverse outcome.

  23. 23.

    Oschadbank files claim worth UAH 15 bln against Russia for losses caused by Crimea annexation—Yatseniuk, Interfax-Ukraine, 8 July 2015, http://en.interfax.com.ua/news/economic/276618.html.

  24. 24.

    Oschadbank files claim worth UAH 15 bln against Russia for losses caused by Crimea annexation—Yatseniuk, Interfax-Ukraine, 8 July 2015, http://en.interfax.com.ua/news/economic/276618.html.

  25. 25.

    Oschadbank v The Russian Federation (Oschadbank v Russia) and PJSC CB PrivatBank and Finance Company Finilon LLC v The Russian Federation, PCA Case No. 2015-21 (PrivatBank v Russia); Aeroport Belbek LLC and Mr. Igor Valerievich Kolomoisky v The Russian Federation, PCA Case No. 2015-07 (Belbek v Russia); (i) Stabil LLC, (ii) Rubenor LLC, (iii) Rustel LLC, (iv) Novel-Estate LLC, (v) PII Kirovograd-Nafta LLC, (vi) Crimea-Petrol LLC, (vii) Pirsan LLC, (viii) Trade-Trust LLC, (ix) Elefteria LLC, (x) VKF Satek LLC, (xi) Stemv Group LLC v The Russian Federation, PCA Case No. 2015-35 (Stabil LLC and others v Russia); PJSC Ukrnafta v The Russian Federation, PCA Case No. 2015-34 (Ukrnafta v Russia); Everest Estate LLC et al. v The Russian Federation, PCA Case No. 2015-36 (Everest Estate LLC and others v Russia); (1) Limited Liability Company Lugzor, (2) Limited Liability Company Libset, (3) Limited Liability Company Ukrinterinvest, (4) Public Joint Stock Company DniproAzot, (5) Limited Liability Company Aberon Ltd v The Russian Federation, PCA Case No. 2015-29 (Lugzor and others v Russia); NJSC Naftogaz of Ukraine, PJSC State Joint Stock Company Chornomornaftogaz, PJSC Ukrgasvydobuvannya and others v The Russian Federation, PCA Case No. 2017-16 (Naftogaz and others v Russia); and a claim by DTEK Krymenergo (Ukraine’s largest energy company) against Russia for the nationalisation of its movable and immovable property, including coal mines, in Crimea. Two tribunals comprised of the same members (Professor Pierre Marie- Dupuy, Sir Daniel Bethlehem QC, and Dr. Václav Mikulka) are hearing both PrivatBank v Russia and Belbek v Russia. Two tribunals comprised of the same members (Professor Gabrielle Kaufmann-Kohler, Daniel Price and Professor Brigitte Stern) are hearing both Stabil LLC and others v Russia and Ukrnafta v Russia. The two sets of two proceedings have remained separate and have not been consolidated. One further claim is reported but has not yet, so far as is publicly known, proceeded to arbitration; namely Ukrenergo’s claim against Russia for the loss of 15 electrical substations and thousands of kilometres of power lines in Crimea.

  26. 26.

    Oschadbank v Russia, PrivatBank v Russia, and Naftogaz and others v Russia. Since the commencement of the PrivatBank v Russia proceeding, Ukraine nationalised PrivatBank.

  27. 27.

    The six arbitrations are: Ukrnafta v Russia; Stabil LLC and others v Russia; Belbek v Russia; PrivatBank v Russia; Everest Estate LLC and others v Russia; and Lugzor and others v Russia. The possibility for non-disputing parties to make submissions to investor-State tribunals is now well established. See Obadia (2007), p. 352.

  28. 28.

    Letters dated 16 June 2015 and 1 July 2015 (re Belbek v Russia) (PCA Press Release, Arbitration Between Aeroport Belbek LLC and Mr. Igor Valerievich Kolomoisky as claimants and the Russian Federation, 6 January 2016, https://pcacases.com/web/sendAttach/1553); letters dated 12 August and 15 September 2015 (re Ukrnafta v Russia and Stabil LLC and others v Russia) (PCA Press Release, Arbitration Between PJSC Ukrnafta as Claimant and the Russian Federation—Arbitration Between Stabil LLC and ten others as claimants and the Russian Federation, 2 May 2016, https://pcacases.com/web/sendAttach/1553).

  29. 29.

    ECHR Press Unit, Factsheet—Armed conflicts, June 2017, http://www.echr.coe.int/Documents/FS_Armed_conflicts_ENG.pdf, p. 17.

  30. 30.

    Ukraine v Russian Federation, Application No. 20958/14; Ukraine v Russian Federation (II), Application No. 43800/14; Ukraine v Russian Federation (III), Application No. 49537/14; Ukraine v Russian Federation (IV), Application No. 42410/15.

  31. 31.

    Ukraine v Russian Federation (III), Application No. 49537/14. The Court struck the application out of its list of cases after Ukraine informed it that it did not wish to pursue the application, given that an individual application (No. 49522/14) concerning the same subject matter was pending before the Court.

  32. 32.

    Convention for the Protection of Human Rights and Fundamental Freedoms (opened for signature 4 November 1950, entered into force 3 September 1953) ETS No. 005 (the Convention).

  33. 33.

    Ukraine v Russian Federation, Application No. 20958/14; ECHR Registrar of the Court, Press Release, European Court of Human Rights deals with cases concerning Crimea and Eastern Ukraine, 26 November 2014, ECHR 345 (2014), http://hudoc.echr.coe.int/eng-press?i=003-4945099-6056223, p. 1.

  34. 34.

    Ukraine v Russian Federation (IV), Application No. 42410/15; ECHR Registrar of the Court, Press Release, European Court of Human Rights communicates to Russia new inter-State case concerning events in Crimea and Eastern Ukraine, 1 October 2015, ECHR 296 (2015), http://hudoc.echr.coe.int/eng-press?i=003-5187816-6420666, p. 1. On 25 November 2016, the Court decided to divide the fourth application into two in a similar way to the first application. All complaints related to the events in Crimea from September 2014 onwards continue to be registered under Application No. 42410/15, while complaints concerning the events in eastern Ukraine from September 2014 are now registered under Ukraine v Russian Federation (VI), Application No. 70856/14.

  35. 35.

    ECHR Registrar of the Court, Press Release, European Court of Human Rights deals with cases concerning Crimea and Eastern Ukraine, 26 November 2014, ECHR 345 (2014), http://hudoc.echr.coe.int/eng-press?i=003-4945099-6056223, pp. 1–21; ECHR Registrar of the Court, Press Release, European Court of Human Rights communicates to Russia new inter-State case concerning events in Crimea and Eastern Ukraine, 1 October 2015, ECHR 296 (2015), http://hudoc.echr.coe.int/eng-press?i=003-5187816-6420666, pp. 1–2.

  36. 36.

    Article 1 provides that “[t]he High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention” (emphasis added).

  37. 37.

    Notification under Article 287 and Annex VII, Article 1 of UNCLOS and Statement of the Claim and Grounds on which it is Based, 14 September 2016. The Notification and Statement of Claim are not publicly available.

  38. 38.

    Statement of the Ministry of Foreign Affairs of Ukraine on the Initiation of Arbitration against the Russian Federation under the United Nations Convention on the Law of the Sea, 14 September 2016, http://mfa.gov.ua/en/press-center/news/50813-zajava-mzs-ukrajini-shhodo-porushennya-arbitrazhnogo-provadzhennya-proti-rosijsykoji-federaciji-vidpovidno-do-konvenciji-oon-z-morsykogo-prava.

  39. 39.

    Statement of the Ministry of Foreign Affairs of Ukraine on the Initiation of Arbitration against the Russian Federation under the United Nations Convention on the Law of the Sea, 14 September 2016, http://mfa.gov.ua/en/press-center/news/50813-zajava-mzs-ukrajini-shhodo-porushennya-arbitrazhnogo-provadzhennya-proti-rosijsykoji-federaciji-vidpovidno-do-konvenciji-oon-z-morsykogo-prava.

  40. 40.

    The Arctic Sunrise Arbitration (Netherlands v Russia), PCA Case No. 2014-02; Russian Federation Note Verbale dated 27 February 2014 addressed to the Permanent Court of Arbitration, https://pcacases.com/web/sendAttach/1315.

  41. 41.

    Russia has appointed an arbitrator, attended the first procedural meeting and appointed an agent and counsel.

  42. 42.

    Kyiv ready to file claim against Russia’s violation of UN convention on law of sea, no political decision of authorities, interfax-Ukraine, 29 January 2016, http://en.interfax.com.ua/news/general/320835.html.

  43. 43.

    Chagos Marine Protected Area (Mauritius v United Kingdom), PCA Case No. 2011-03, Award (18 March 2015), paras 211–212; South China Sea (Philippines v China), PCA Case No. 2013-19, Award on Jurisdiction and Admissibility (29 October 2015), para. 153.

  44. 44.

    See, for example, Tzeng (2017).

  45. 45.

    Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3 (Rome Statute).

  46. 46.

    Declaration of Ukraine, 9 April 2014, https://www.icc-cpi.int/itemsDocuments/997/declarationRecognitionJuristiction09-04-2014.pdf.

  47. 47.

    Declaration of Ukraine, 8 September 2015, https://www.icc-cpi.int/iccdocs/other/Ukraine_Art_12-3_declaration_08092015.pdf.

  48. 48.

    The Prosecutor of the International Criminal Court, Fatou Bensouda, opens a preliminary examination in Ukraine, International Criminal Court, Press Release: 25 April 2014, https://www.icc-cpi.int//Pages/item.aspx?name=pr999.

  49. 49.

    ICC Prosecutor extends preliminary examination of the situation in Ukraine following second article 12(3) declaration, International Criminal Court, Press Release: 29 September 2015, https://www.icc-cpi.int//Pages/item.aspx?name=pr1156.

  50. 50.

    Office of the Prosecutor, Report on Preliminary Examination Activities 2016, International Criminal Court, 14 November 2016, para. 158.

  51. 51.

    Office of the Prosecutor, Report on Preliminary Examination Activities 2016, International Criminal Court, 14 November 2016, para. 158.

  52. 52.

    Office of the Prosecutor, Report on Preliminary Examination Activities 2016, International Criminal Court, 14 November 2016, para. 168.

  53. 53.

    Office of the Prosecutor, Report on Preliminary Examination Activities 2016, International Criminal Court, 14 November 2016, para. 169.

  54. 54.

    Office of the Prosecutor, Report on Preliminary Examination Activities 2016, International Criminal Court, 14 November 2016, para. 170; Office of the Prosecutor, Report on Preliminary Examination Activities 2016, International Criminal Court, 4 December 2017, para. 95.

  55. 55.

    Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331.

  56. 56.

    Crawford (2011), p. 131 (citations omitted).

  57. 57.

    See, for example, M/V “Saiga” (No 2) Case, Saint Vincent and the GrenadinesvGuinea, Order, Request for Provisional Measures, ITLOS Case No 2, 11 March 1998, International Tribunal for the Law of the Sea, paras 153–159, especially 155; The M/V “Virginia G” Case, PanamavGuinea-Bissau, Merits, ITLOS Case No 19, 14 April 2014, International Tribunal for the Law of the Sea, paras 350–362. In both cases, ITLOS made reference to Article 293 of UNCLOS, by virtue of which “A court or tribunal having jurisdiction under this section shall apply this Convention and other rules of international law not incompatible with this Convention.”

  58. 58.

    Article 41(2) Draft Articles on the Responsibility of States for Internationally Wrongful Acts, 2001.

  59. 59.

    UNGA Res. 68/262, Territorial integrity of Ukraine, United Nations General Assembly 27 March 2014, operative para. 6.

  60. 60.

    Perry (2016).

  61. 61.

    Hepburn (2017).

  62. 62.

    Belbek v Russia, PrivatBank v Russia, Everest Estate LLC and others v Russia, Ukrnafta v Russia, Stabil LLC and others v Russia and Lugzor and others v Russia.

  63. 63.

    Hepburn and Kabra (2017).

  64. 64.

    Hepburn (2017).

  65. 65.

    Hepburn and Kabra (2017).

  66. 66.

    Hepburn and Kabra (2017).

  67. 67.

    Hepburn and Kabra (2017).

  68. 68.

    Hepburn (2017). Reporting on the decision does not indicate which decisions swayed the tribunal. Decisions of possible relevance include those regarding extra-territorial application of the ECHR, perhaps most notably: Case of Loizidou v Turkey (Application No. 15318/89), Judgment, 18 December 1996, esp. para. 78; Case of Cyprus v Turkey ([GC], no. 25781/94), Judgment, 10 May 2001, para. 96); Case of Al-Skeini and others v the United Kingdom (Application No. 55721/07), Judgment (Merits and Just Satisfaction), 7 July 2011, esp. para. 142; Case of Hassan v The United Kingdom (Application No. 29750/09), Judgment (Merits), 16 September 2014). The claimants may have referred to the following ICJ opinions and decisions, which touch on the extraterritorial application of treaties: Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, pp. 16 and 56; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I. C. J. Reports 2004, p. 136; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgment, I.C.J. Reports 2005, p. 168; and Application of the International Convention on the Elimination of all Forms of Racial Discrimination (Georgia v Russian Federation), Provisional Measures, Order of 15 October 2008, I.C.J. Reports 2008, p. 353.

  69. 69.

    Hepburn and Kabra (2017).

  70. 70.

    Hepburn and Kabra (2017).

  71. 71.

    Hepburn and Kabra (2017).

  72. 72.

    Peterson (2017).

  73. 73.

    Peterson (2017).

  74. 74.

    Office of the Prosecutor, Report on Preliminary Examination Activities 2016, International Criminal Court, 14 November 2016, para. 150.

  75. 75.

    Another Claim over Crimea Given Go Ahead, GAR, 14 December 2017, https://globalarbitrationreview.com/print_article/gar/article/1151739/another-claim-over-crimea-given-go-ahead?print=true.

  76. 76.

    Office of the Prosecutor, Report on Preliminary Examination Activities 2016, International Criminal Court, 14 November 2016, para. 170; Office of the Prosecutor, Report on Preliminary Examination Activities 2016, International Criminal Court, 4 December 2017, para. 95.

  77. 77.

    Hepburn (2017).

  78. 78.

    Hepburn (2017).

  79. 79.

    Case of Hassan v The United Kingdom (Application No. 29750/09), Judgment (Merits), 16 September 2014.

  80. 80.

    Case of Loizidou v Turkey (Application No. 15318/89), Judgment, 18 December 1996; Case of Al-Skeini and others v the United Kingdom (Application No. 55721/07), Judgment (Merits and Just Satisfaction), 7 July 2011; Case of Mozer v The Republic of Moldova and Russia (Application no. 11138/10), Judgment, 23 February 2016.

  81. 81.

    Catan and Others v the Republic of Moldova and Russia ([GC], nos. 43,370/04, 8252/05 and 18,454/06, ECHR 2012, para. 107; see also Chiragov and Others v Armenia ([GC], no. 13216/05, ECHR 2015, para. 168.

  82. 82.

    Hepburn and Kabra (2017).

  83. 83.

    The Prosecutor v Duško Tadić, Case No. IT-94-1-A, Judgment, International Criminal Tribunal for the former Yugoslavia (ICTY), Appeals Chamber, 15 July 1999, para. 131.

  84. 84.

    The Prosecutor v Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Judgment pursuant to Art. 74 of the Statute, Trial Chamber I, 14 March 2012, para. 541; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgement, ICJ Reports 2007, para. 404 (though the Court did not find it appropriate to take a firm position on the point in that case).

  85. 85.

    In the reported words of the Ukrnafta and Stabil tribunal.

  86. 86.

    Hepburn and Kabra (2017).

  87. 87.

    Peterson (2017).

  88. 88.

    Another Claim over Crimea Given Go Ahead, GAR, 14 December 2017, https://globalarbitrationreview.com/print_article/gar/article/1151739/another-claim-over-crimea-given-go-ahead?print=true.

  89. 89.

    Peterson (2015a, b).

  90. 90.

    Peterson (2015a).

  91. 91.

    Naftogaz files arbitration against Russia to recover $2.6billion for stolen Crimea assets, 19 October 2016, http://www.naftogaz.com/www/3/nakweben.nsf/0/DC8AA6A56E589FE3C225805100278490?OpenDocument&year=2016&month=10&nt=News&.

  92. 92.

    Naftogaz files arbitration against Russia to recover $2.6billion for stolen Crimea assets, 19 October 2016, http://www.naftogaz.com/www/3/nakweben.nsf/0/DC8AA6A56E589FE3C225805100278490?OpenDocument&year=2016&month=10&nt=News&. Relatedly, a draft UNGA resolution that will be put to a vote in the plenary of the General Assembly at the end of December 2017 urges Russia to “respect the laws in force in Ukraine and to repeal laws imposed in Crimea by the Russian Federation that allow for forced evictions and the confiscation of private property in Crimea, in violation of applicable international law” (UN Doc. A/C.3/72/L.42, 31 October 2017, operative para. 3(d)).

  93. 93.

    The Ukrainian Prime Minister stated that the claim was, inter alia, to compensate for “the damage and loss inflicted by the Russian Federation’s illegal annexation of Crimea […]” (Oschadbank files claim worth UAH 15 bln against Russia for losses caused by Crimea annexation—Yatseniuk, Interfax-Ukraine, 8 July 2015, http://en.interfax.com.ua/news/economic/276618.html).

  94. 94.

    ECHR Registrar of the Court, Press Release, European Court of Human Rights deals with cases concerning Crimea and Eastern Ukraine, 26 November 2014, ECHR 345 (2014), http://hudoc.echr.coe.int/eng-press?i=003-4945099-6056223, pp. 1–2.

  95. 95.

    Office of the Prosecutor, Report on Preliminary Examination Activities 2016, International Criminal Court, 4 December 2017, para. 102.

  96. 96.

    De Brabandere (2015), p. 351.

  97. 97.

    Office of the Prosecutor, Report on Preliminary Examination Activities 2016, International Criminal Court, 4 December 2017, para. 115.

  98. 98.

    Russia simulates airstrike on Ukraine Navy warning against attempts to recover seized oil rigs off Crimea coast, 20 October 2017, https://www.unian.info/war/2197579-russia-simulates-airstrike-on-ukraine-navy-warning-against-attempts-to-recover-seized-oil-rigs-off-crimea-coast.html.

  99. 99.

    Ukraine Accuses Russia of Looting Its Oil Rigs, The Interpreter, https://pressimus.com/Interpreter_Mag/press/11519; Bugriy (2016) and Yong (2016).

  100. 100.

    The same law firm—Covington & Burling—is representing Naftogaz and DTEK Krymenergo in their BIT claims against Russia and also representing Ukraine in its UNCLOS claim. Covington & Burling is also representing Ukraine in respect of its filing of written submissions in five of the other BIT arbitrations (Ukrnafta v Russia, Stabil LLC and others v Russia, Belbek v Russia, PrivatBank v Russia, and Everest Estate LLC and others v Russia).

  101. 101.

    See Spears and Fogdestam Agius in this volume.

  102. 102.

    https://en.oxforddictionaries.com/definition/war.

  103. 103.

    Office of the Prosecutor, Report on Preliminary Examination Activities 2016, International Criminal Court, 14 November 2016, para. 157.

  104. 104.

    Third Committee approves five drafts on situations in Syria, Iran, Democratic People’s Republic of Korea, amid debate over merits of country-specific texts, GA/SHC/4220, 14 November 2017, https://www.un.org/press/en/2017/gashc4220.doc.htm.

  105. 105.

    Office of the Prosecutor, Report on Preliminary Examination Activities 2016, International Criminal Court, 14 November 2016, para. 158.

  106. 106.

    Office of the Prosecutor, Report on Preliminary Examination Activities 2016, International Criminal Court, 14 November 2016, para. 158.

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    Laura Rees-Evans

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  2. Athens Public International Law Center, National and Kapodistrian University of Athens, Athens, Greece

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  3. French National Centre for Scientific Research (CNRS)-CERSA, University Paris II Panthéon-Assas, Paris, France

    Catharine Titi

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Rees-Evans, L. (2019). Litigating the Use of Force: Reflections on the Interaction Between Investor-State Dispute Settlement and Other Forms of International Dispute Settlement in the Context of the Conflict in Ukraine. In: Fach Gómez, K., Gourgourinis, A., Titi, C. (eds) International Investment Law and the Law of Armed Conflict. European Yearbook of International Economic Law(). Springer, Cham. https://doi.org/10.1007/978-3-030-10746-8_9

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  • DOI: https://doi.org/10.1007/978-3-030-10746-8_9

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  • Publisher Name: Springer, Cham

  • Print ISBN: 978-3-030-10745-1

  • Online ISBN: 978-3-030-10746-8

  • eBook Packages: Law and CriminologyLaw and Criminology (R0)

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