Ieguldījumu aizsardzība okupētajās un kara postītajās teritorijās

As a result of the occupation and annexation of Crimea, Ukrainian investors have filed several investment claims against Russia. These cases have raised, among other things, the question of what investment treaties, if any, are applicable in the occupied territory. In answering this question, the current paper first examines the obligations of the occupier under the law of occupation vis-à-vis the investment treaty obligations pertaining to occupied state. Recent arbitral decisions upholding arbitral jurisdiction in the Crimean context suggest that the Russian investment treaty norms are applicable in the occupied territory. The paper then critically examines the interpretation of the term “territory”. It finds that the territorial application of treaties may, without violating other rules of international law, be extended to foreign territories under the effective control of a contracting state. Despite the politically grave consequences that such an interpretation could have for the entrenchment of occupation, independent legal review of measures taken by occupying States is to be welcomed.