The research uses data from 159 cases where arbitrators rendered awards that resulted in a determination of damages. The awards examined were those that are publicly-available as of 1 January 2012.
Here are some key findings:
- States were successful in 60.4% of the cases, and investors won approximately 39.6% of the cases.
- In cases when investors won, they generally obtained roughly one-third of the compensation claimed.
- Focusing exclusively on the small subset of cases where investors obtained damages, investors obtained a mean award of US$45.6 million.
- For the eight largest claims, only one case was successful.
- The vast majority of investors bringing billion-dollar claims obtained nothing.
On 17 December 2015, the tribunal in Philip Morris Asia Ltd. v. Australia issued the long-anticipated award on the case, declining jurisdiction, as known from a statement from Philip Morris.
The case concerns Australia’s Tobacco Plain Packaging Act 2011 which prohibits use of trademarks, symbols, graphic or images on tobacco products and packaging. The investor argued that the measure has expropriated its intellectual property rights because it cannot use its logo in the cigarette package.
The tribunal’s reasoning for declining jurisdiction remains unknown. However, it is known that Australia has submitted jurisdictional objection among others that the dispute had arisen before the investor obtained protection under the bilateral investment treaty between Hong Kong and Australia and that the commencement of the arbitration shortly after the investor’s restructuring is considered an abuse of rights.
As published by the Permanent Court of Arbitration website, the award will not become public until the parties agree on the redaction of any confidential information contained in the award.