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

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.