Lawfare in Crimea: treaty, territory, and investor–state dispute settlement

In this paper—adapted from a lecture given at Koç University Law School—I describe how investor–state dispute settlement (‘ISDS’) can form part of an international lawfare strategy. Unlike other forms of international dispute settlement, the questions of territorial sovereignty that the weaker party to an international conflict may wish to have answered in its favour may (treaty drafting depending) be firmly within the incidental jurisdiction of an ISDS tribunal, making such a tribunal an attractive forum for lawfare. I first provide a working definition of lawfare and describe how ISDS can play a part in its prosecution, before turning to a case study, namely ISDS as a part of the lawfare strategy carried out by Ukraine against Russia in relation to the latter’s unlawful occupation of Crimea from 2014 onwards. I conclude with a discussion of the flexibilities of ISDS in this respect and consider shortly how Ukraine’s existing lawfare strategy can be adapted in the context of Russia’s current occupation of eastern Ukraine.