Investment arbitration and armed conflict—international investment law asks; international humanitarian law answers

Abstract This article assesses critically investment treaty arbitration (ITA) awards that have arisen out of disturbances and armed conflicts. A detailed analysis of these ITA awards reveals that, although international humanitarian law (IHL) applies alongside international investment law (IIL) in times of armed conflict, tribunals have largely ignored IHL-related considerations in their deliberations in relevant ITAs. Given the likelihood that ITAs resulting from armed conflict will continue to arise in the future, distinguished scholars have increasingly called for the consideration of the role of IHL in ITAs. In the light of these growing calls for a reconceptualization of the legal framework governing foreign investments in war, this article engages in an in-depth analysis of existing arbitral practice in this space. The article queries, on the basis of relevant cases, which legal questions emerge in ITAs arising out of armed conflict to which IHL may provide answers.