Adjudicating while Fighting: Political Implications of the Ukraine-Russia Bilateral Investment Treaty

Russia’s 2014 seizure of parts of Ukraine, notably the Crimean Peninsula, set in motion a flurry of legal activity. Ukraine’s “lawfare” strategy, which aims to fight Russia via international legal means, included explicit encouragement of Ukrainian investors to file disputes under the Ukraine-Russia Bilateral Investment Treaty. We consider the resulting Investor-State Dispute Settlement (ISDS) arbitrations, the first instances of ISDS in which state parties to the treaty are actively engaged in armed conflict. Although Ukrainian actors have consistently won at ISDS arbitrations, Ukraine moved to formally withdraw from the treaty a year after the full-scale Russian invasion of 2022. Developments before and since the invasion point to the diverging interests between commercial actors and their home states, the weakness of ISDS as a tool during wartime, and a reconsideration of treaty-based commitments to international investor protections. We highlight the implications of these events for several literatures in international relations.