In the early hours of February 24, 2022, Russia launched a wide-scale military invasion of Ukraine—the largest attack on a European country since the Second World War.1Russian forces launch full-scale invasion of Ukraine, Al Jazeera (Feb. 24, 2022), https://www.aljazeera.com/news/2022/2/24/putin-orders-military-operations-in-eastern-ukraine-as-un-meets.X1  However, this was not the beginning of Russia’s aggression against Ukraine.  Eight years earlier, in February 2014, Russia occupied and subsequently annexed Crimea, a peninsula in southern Ukraine, and later gained control over parts of the Donetsk and Luhansk regions of eastern Ukraine.2See Nigel Walker, Conflict in Ukraine: A timeline (2014 – eve of 2022 invasion), UK House of Commons Library (Aug. 22, 2023), https://commonslibrary.parliament.uk/research-briefings/cbp-9476/.X2  In response, Ukraine adopted an unorthodox strategy: encouraging its citizens to bring investor-state dispute settlement claims against Russia based on alleged violations of the 1998 bilateral investment treaty (“BIT”) between Russia and Ukraine (the “Ukraine-Russia BIT”).3Agreement between the Government of the Russian Federation and the Cabinet of Ministers of the Ukraine on the Encouragement and Mutual Protection of Investments, Nov. 27, 1998 [hereinafter the Ukraine-Russia BIT]; About Lawfare Project: History, Lawfare, https://lawfare.gov.ua/about [web.archive.org/web/20231101013059/https://lawfare.gov.ua/about]; Eric Chang, Lawfare in Ukraine: Weaponizing International Investment Law and the Law of Armed Conflict Against Russia’s Invasion, 8 INSS Strategic Perspectives 1, 6-7 (2022); see also Jill Goldenziel, An Alternative to Zombieing: Lawfare Between Russia and Ukraine and the Future of International Law, 108 Cornell L. Rev. 1, 5-14 (2022) (explaining Ukraine’s lawfare strategy and its implications for future armed conflicts).  See generally Patrick Dumberry, BIT Arbitration Cases Involving State Succession Issues, in A Guide to State Succession in International Investment Law 143, 186-246 (2018) (providing an overview of the publicly known investment arbitration cases that involved issues of state succession prior to May 2017).X3

Unexpectedly, the resulting “Crimea cases” have overwhelmingly ruled in favor of the Ukrainian investors—in direct contradiction to some scholars’ prior understanding of international investment law in situations of occupation and annexation.4See generally Patrick Dumberry, Requiem for Crimea: Why Tribunals Should Have Declined Jurisdiction Over the Claims of Ukrainian Investors Against Russian Under the Ukraine-Russia BIT, 9 J. Int’l Disp. Settlement 506 (2018).X4  The root of this contradiction lies in a fundamental procedural question: did the Crimea tribunals have the jurisdiction to adjudicate the merits of the claims brought under the Ukraine-Russia BIT by Ukrainian nationals against Russia for investments made in Crimea prior to Russia’s occupation and annexation of the region?

An investment tribunal’s authority to adjudicate an alleged treaty breach is limited by the treaty’s scope of application, which is defined by four jurisdictional requirements.5See generally John Merrills & Eric de Brabandere, Merrills’ International Dispute Settlement 173-80 (7th ed. 2022).X5  These jurisdictional criteria are: the individuals to whom protection is granted—jurisdiction ratione personae; the subject matter that is protected—jurisdiction ratione materiae; the time period during which investments are protected—jurisdiction ratione temporis; and lastly, the geographical area within which investments are protected—jurisdiction ratione loci.6See United Nations Conference on Trade and Development (UNCTAD), Bilateral Investments Treaties 1995-2006: Trends in Investment Rulemaking at 4 (2007), https://unctad.org/system/files/official-document/iteiia20065_en.pdf.X6  If any of these criteria are missing, the investment tribunal lacks the authority to adjudicate the alleged breach.7See Michael Waibel, Investment Arbitration: Jurisdiction and Admissibility, 9 Cambridge L. Stud. Rsch. Paper Series 1, 31 (2014).X7

While many tribunals have examined a treaty’s scope based on the first three jurisdictional requirements, until recently, few tribunals have examined the final requirement—jurisdiction ratione loci.8See id. at 38-42; Merrills & de Brabandere, supra note 5, at 175-80.X8  That changed with the Crimea cases.  Because the annexation of Crimea raised legal questions that did not readily fit into “any settled matrix of legal analysis,” the tribunals needed to adopt a novel approach for analyzing the geographic area protected by the Ukraine-Russia BIT.9PrivatBank & Finance Co. Finilon, LLC v. Russian Federation, PCA Case No. 2015-21, Interim Award, ¶ 165 (Mar. 27, 2017); see also Naftogaz v. Russian Federation, PCA Case No. 2017-16, Partial Award, Stanivuković Dissenting Opinion, ¶ 68 (Feb. 22, 2019) (citing the unpublished Aeroport Belbek award).X9  Consequently, a new line of case law emerged for determining the geographic scope of a treaty’s protection—i.e., the treaty’s jurisdiction ratione loci—in situations of occupation and annexation.10Although no rule of binding precedence exists in international law, there is an ongoing debate regarding whether, in the interest of consistency and stability, arbitrators should avoid deviating from prior case law.  Compare Stabil v. Russian Federation, PCA Case No. 2015-35, Award on Jurisdiction, ¶ 94 (June 26, 2017) (explaining the majority’s view that, while prior decisions in international law are not binding, “absent contrary grounds,” the tribunal should “adhere to rules established on comparable facts in a series of consistent cases”), with id. ¶ 94 n.85 (explaining Arbitrator Stern’s view that it is an arbitrator’s “duty to decide each case on its own merits, independently of any apparent jurisprudential trend”); see also Naftogaz v. Russian Federation, PCA Case No. 2017-16, Partial Award, ¶ 139 (Feb. 22, 2019) (explaining that the arbitrators would approach the issues presented using “first principles and with an independent perspective” while also taking “into account earlier awards for such persuasive value as it considers appropriate”).X10  That said, scholars continue to debate the consequences and implications of the Crimea cases for future investment disputes.11See, e.g., Cameron Miles, Lawfare in Crimea: Treaty, Territory, and Investor-State Dispute Settlement, 38 Arb. Int’l 135 (2022); Richard Happ & Sebastian Wuschka, Horror Vacui: Or Why Investment Treaties Should Apply to Illegally Annexed Territories, 33 J. Int’l Arb. 245 (2016); Dumberry, supra note 4.X11

This article first introduces the Crimea cases and explains the importance of the definition of “territory” for determining a treaty’s jurisdiction ratione loci.  It then summarizes the definition of “territory” in the Ukraine-Russia BIT and explains the parties’ corresponding arguments regarding the term’s proper interpretation.  Next, it identifies trends in the new line of case law created by the Crimea cases by dissecting the tribunals’ conclusions and reasoning.  Finally, this article discusses several potential impacts thatthe Crimea tribunals’ decisions may have on future international investment disputes, as well as the broader consequences for theinternational law governing situations of occupation and annexation.  

Through this analysis, this article concludes that the Crimea cases have significantly impacted international investment law—and the legal framework for occupation and annexation—by providing future tribunals with a roadmap for analyzing “territory” in situations of occupation or annexation, and by demonstrating that effective control over occupied or annexed territory could satisfy an investment treaty’s jurisdiction ratione loci requirement.

As of July 2025, there were eleven known investor-state arbitrations related to the 2014 annexation of Crimea.1Ukraine’s national nuclear-energy-generating company, Energoatom, also threatened Russia with Crimea-related arbitration; however, the company did not officially put Russia on notice for arbitration until after Russia’s 2022 invasion of Ukraine.  See Lisa Bohmer, State-Owned Ukrainian Energy Company Threatens Crimea-Related Arbitration Against Russia, IA Rep. (Dec. 18, 2020); Lisa Bohmer, Energoatom Puts Russia on Notice of Arbitration Dispute In Relation To Treatment Of Zaporizhzhia Nuclear Power Plant And Other Assets in the Context of the War in Ukraine, IA Rep. (Apr. 16, 2023).  In April 2023, Ukrainian businessman Rinat Akhmetov also announced that his corporation, SCM Group, had launched an investor-state dispute against Russia for “the unlawful actions of Russia between 2014 and 2017, and onwards.”  See Tom Jones, Ukraine’s richest man brings treaty claim against Russia, Glob. Arb. Rev. (Apr. 11, 2023).  An additional case, VEB v. Ukraine, arose as the result of claimant’s efforts to enforce various Crimea-related arbitral awards; however, because the case does not involve the same issues of geographic jurisdiction as the original Crimea cases, the case and its implications are outside of the scope of this paper.  See Vladislav Djanic, CIS Round-up: A discontinuation, a provisional-measure ruling, a new case, and Russia enters the fray, IA Rep. (Mar. 18, 2020).X1  Together, these Crimea cases form a new body of case law that establishes a roadmap for examining a treaty’s jurisdiction ratione loci in situations of occupation and annexation.  However, until recently, the circumstances surrounding these cases and their adjudication have remained confidential.

Considering this confidentiality, this section first introduces each of the Crimea cases to provide an understanding of the relevant circumstances and procedural histories. It then explains the importance of the relevant investment treaty’s definition of “territory” for determining its jurisdiction ratione loci.  Lastly, it summarizes the definition of “territory” included in the Ukraine-Russia BIT, and the party’s arguments regarding the proper interpretation of this term.

A. Crimea Cases

The first known Crimea case was initiated on January 9, 2015.2Luke E. Peterson, First UNCITRAL arbitral tribunal is finalized to hear claim that Russia is liable for harm befalling investments in annexed Crimean peninsula, IA Rep. (Jul. 14, 2015) (describing Aeroport Belbek).X2  By the end of 2015, investors commenced at least five more cases,3See Luke E. Peterson, A second UNCITRAL arbitral tribunal is constituted to hear Crimea claims against Russia, as tribunal selection begins in three further cases, IA Rep. (Jul. 14, 2015) (describing PrivatBank) [hereinafter Peterson, A second UNCITRAL arbitral tribunal]; Jarrod Hepburn & Ridhi Kabra, Investigation: Further Russia investment treaty decisions uncovered, offering broader window into arbitrators’ approaches to Crimea controversy, IA Rep. (Nov.17, 2017) (describing Ukranafta and Stabil); Jarrod Hepburn, Investigation: full jurisdictional reasoning comes to light in Crimea-related BIT arbitration vs. Russia, IA Rep. (Nov. 9, 2017) (describing Everest Estate); Luke E. Peterson, Russia disputes round-up: updates on status of 11 known investment treaty claims, IA Rep. (Jan. 19, 2016) (describing Lugzor) [hereinafter Peterson, Russia disputes round-up].X3 followed by at least two cases in 2016,4Ukraine’s Naftogaz files BIT arbitration against Russia, IA Rep. (Oct. 19, 2019) [hereinafter Ukraine’s Naftogaz files BIT arbitration against Russia]; Peterson, Russia disputes round-up, supra note 14.X4 at least one case in 2018,5Russia BIT claims: recent developments in arbitrations against the Russian Federation, IA Rep. (Apr. 13, 2017).X5 and at least two cases in 2019.6See Ukrenergo v. Russia, Investment Policy UNCTAD, https://investmentpolicy.unctad.org/investment-dispute-settlement/cases/1007/ukrenergo-v-russia;Akhmetov and Investio v. Russia, Investment Policy UNCTAD, https://investmentpolicy.unctad.org/investment-dispute-settlement/cases/1380/akhmetov-and-investio-v-russia.X6  The claimants, who each claim expropriation of their business assets, represent a variety of different economic sectors:  air transportation—Aeroport Belbek v. Russia (“Aeroport Belbek”);7See Aeroport Belbek LLC and Mr. Igor Valerievich Kolomoisky v. The Russian Federation, PCA, https://pca-cpa.org/en/cases/123/ [hereinafter Aeroport Belbek v. Russia].X7 banking—PrivatBank and Finilon v. Russia (“PrivatBank”)8See JSC CB PrivatBank v. The Russian Federation, PCA, https://pca-cpa.org/en/cases/130/ [hereinafter PrivatBank v. Russia].X8 and Oschadbank v. Russia (“Oschadbank”);9See Oschadbank v. Russian Federation, PCA Case No. 2016-14, italaw, https://www.italaw.com/cases/7491 [hereinafter Oschadbank v. Russia].X9 real estate—Everest Estate and others v. Russia (“Everest Estate”)10See Everest Estate LLC et al. v. The Russian Federation, PCA, https://pca-cpa.org/en/cases/133/ [hereinafter Everest Estate v. Russia].X10 and Lugzor and others v. Russia(“Lugzor”);11See (1) Limited Liability Company Lugzor, (2) Limited Liability Company Libset, (3) Limited Liability Company Ukrinterinvest, (4) Public Joint Stock Company DniproAzot, (5) Limited Liability Company Aberon Ltd v. The Russian Federation, PCA, https://pca-cpa.org/en/cases/124/ [hereinafter Lugzor v. Russia].X11 and oil, gas, petrol, and energy—Ukranafta v. Russia (“Ukranafta”);12See PJSC Ukrnafta v. The Russian Federation, PCA, https://pca-cpa.org/en/cases/121/ [hereinafter Ukrnafta v. Russia].X12 Stabil and others v. Russia (“Stabil”);13See (i) Stabil LLC, (ii) Rubenor LLC, (iii) Rustel LLC, (iv) Novel-Estate LLC, (v) PII Kirovograd-Nafta LLC, (vi) Crimea-Petrol LLC, (vii) Pirsan LLC, (viii) Trade-Trust LLC, (ix) Elefteria LLC, (x) VKF Satek LLC, (xi) Stemv Group LLC v. The Russian Federation, PCA, https://pca-cpa.org/en/cases/122/ [hereinafter Stabil et al. v. Russia].X13 Naftogaz and others v. Russia (“Naftogaz”);14See NJSC Naftogaz of Ukraine (Ukraine) et al. v. The Russian Federation, PCA, https://pca-cpa.org/en/cases/151/ [hereinafter Naftogaz v. Russia].X14 DTEK v. Russia (“DTEK”);15See JSC DTEK Krymenergo v. Russian Federation, PCA Case No. 2018-41, italaw, https://www.italaw.com/cases/10984 [hereinafter DTEK v. Russia].X15 and Ukrenergo v. Russia (“Ukrenergo”).16NPC Ukrenergo v. Russian Federation, PCA Case No. 2020-17, italaw, https://www.italaw.com/cases/7563 [hereinafter Ukrenergo v. Russia].X16  One additional case, Akhmetov and Investio v. Russia (“Akhmetov and Investio”), involves unknown Crimean assets.17Rinat Akhmetov and Investio LLC v. Russian Federation, PCA Case No 2019-34, italaw, https://www.italaw.com/cases/11526.X17

In Aeroport Belbek and PrivatBank, the claimants—Aeroport Belbek, which operated a commercial airport terminal; and PrivatBank and Finilon, which operated a banking institution—are Ukrainian companies who allege that Russia expropriated their business assets in Crimea following the 2014 annexation.18Hof Den Haag July 19, 2022, ECLI:NL:GHDHA:2022:1296 m.nt., ¶¶ 3.1-3.6 (Russian Federation/Aeroport Belbek et al.) (Neth.) (machine translated by Google); Peterson, supra note 13 (describing Aeroport Belbek); Hof Den Haag July 19, 2022, ECLI:NL:GHDHA:2022:1294 m.nt., ¶¶ 3.1-3.7 (Russian Federation/JSC CB Privatbank) (Neth.) (machine translated by Google); Peterson, A second UNCITRAL arbitral tribunal, supra note 14 (describing PrivatBank).X18  The claims were formally brought on January 9, 2015, and April 1, 2015, respectively.19PrivatBank v. Russia, supra note 19; Aeroport Belbek v. Russia, supra note 18.X19  Subsequently, identically-composed tribunals rendered awards confirming jurisdiction on February 24, 2017;20The PrivatBank award was later amended to correct typographical errors and re-released on March 27, 2017.  Press Release, Arbitration Between PJSC Privatbank and Finance Company Finilon LLC as Claimants and the Russian Federation, PCA (Mar. 9, 2017).X20 and finding in favor of the investors on February 4, 2019.21While the Aeroport Belbek judgments remain confidential, the PrivatBank judgments—which include information about Aeroport Belbek—were released with redactions.  See PrivatBank & Finance Co. Finilon, LLC v. Russian Federation, PCA Case No. 2015-21, Interim Award, ¶ 1 (Mar. 27, 2017); PrivatBank & Finance Co. Finilon, LLC v. Russian Federation, PCA Case No. 2015-21, Partial Award, ¶ 185 (Feb. 4, 2019); PrivatBank v. Russia, supra note 19; Aeroport Belbek v. Russia, supra note 18.X21  In set-aside proceedings in the Netherlands, Russia failed to annul either award.22Hof Den Haag July 19, 2022, ECLI:NL:GHDHA:2022:1296 m.nt. (Russian Federation/Aeroport Belbek et al.) (Neth.) (machine translated by Google); HR December 6, 2024, ECLI:NL:HR:2024:1813 m.nt. (Russian Federation/Aeroport Belbek et al.) (Neth.) (machine translated by Google); Hof Den Haag July 19, 2022, ECLI:NL:GHDHA:2022:1294 m.nt. (Russian Federation/JSC CB Privatbank) (Neth.) (machine translated by Google); HR December 6, 2024, ECLI:NL:HR:2024:1807 m.nt. (Russian Federation/JSC CB Privatbank) (Neth.) (machine translated by Google).  See also Lisa Bohmer, Dutch appeals court dismisses Russia’s allegation that four treaty tribunals wrongly upheld jurisdiction over Ukrainian investments in Crimea; Naftogaz v. Russia decision is partially set aside to clarify that Ukraine-Russia BIT does not apply to investments made before USSR’s downfall, IA Rep. (July 19, 2022); Susannah Moody, Dutch Supreme Court rules in four Crimea cases, Glob. Arb. Rev. (Dec. 6, 2024).X22

In Ukranafta and Stabil, the claimants are Ukrainian petroleum companies who allege that Russia expropriated their Crimean assets following the 2014 annexation.23Peterson, Russia disputes round-up, supra note 14; Hepburn & Kabra, supra note 14.X23  Both cases were formally brought on June 15, 2015.24Ukrnafta v. Russia, supra note 23; Stabil et al. v. Russia, supra note 23.X24  Subsequently, identically composed tribunals rendered almost identical awards confirming jurisdiction on June 26, 2017; and finding in favor of the investors on April 12, 2019.25Stabil v. Russian Federation, PCA Case No. 2015-35, Award on Jurisdiction (June 26, 2017); Stabil v. Russian Federation, PCA Case No. 2015-35, Final Award (Apr. 12, 2019).  See Hepburn & Kabra, supra note 14; Luke E. Peterson, As Russia is held liable in two new BIT cases, and ordered to pay upwards of $100 million, we round-up developments in Crimea-related arbitrations, IA Rep. (Apr. 16, 2019).  While the Ukranafta judgments remain confidential, the Stabiljudgments became public through enforcement proceedings before the US District Court for the District of Columbia.  See Damien Charlotin, Analysis: Stabil v. Russia tribunal attributes paramilitary actions to Russia, and awards 35 million USD on account of expropriation of Ukrainian petrol investments, IA Rep. (Apr. 12, 2022).X25  In set-aside proceedings in Switzerland, Russia failed to annul either case’s awards.26Bundesgericht [BGer] [Federal Supreme Court] Dec. 12, 2019, 4A_246/2019 (Switz.); Bundesgericht [BGer] [Federal Supreme Court] Oct. 16, 2018, 4A_398/20117 (Switz.) (appealing Stabil). Bundesgericht [BGer] [Federal Supreme Court] Dec. 12, 2019, 4A_244/2019 (Switz.); Bundesgericht [BGer] [Federal Supreme Court] Oct. 16, 2018, 4A_396/20117 (Switz.) (appealing Ukrnafta).  See Lisa Bohmer, In now-public decisions, Swiss Federal Tribunal clarifies reasons for dismissing challenges to two Crimea-related investment treaty awards against Russia, IA Rep. (Nov. 16, 2018); Damien Charlotin, Russia fails to set aside two Crimea-related awards at Swiss seat, IA Rep. (Dec. 17, 2019).X26

In Everest Estate, the claimants include eighteen Ukrainian companies and one Ukrainian individual who allege that Russia expropriated their Crimean real estate assets following the 2014 annexation.27Peterson, A second UNCITRAL arbitral tribunal, supra note 14 (describing PrivatBank); Hepburn, supra note 14 (describing the unpublished Everest Estateaward).X27  The case was formally brought on June 19, 2015.28Everest Estate v. Russia, supra note 21.X28  The tribunal subsequently rendered an award confirming its jurisdiction on March 20, 2017, and a final award in favor of the investor on May 2, 2018.29Everest Estates and others v. Russia, Investment Policy UNCTAD, https://investmentpolicy.unctad.org/investment-dispute-settlement/cases/631/everest-and-others-v-russia.  The award remains unpublished, though its contents have been revealed in latter investment news reporting.  See id.X29  In set-aside proceedings in the Netherlands, the Hague Court of Appeal rejected Russia’s attempt to annul the award.30Hof Den Haag July 19, 2022, ECLI:NL:GHDHA:2022:1297 m.nt. (Russian Federation/Everest Estate et al.) (Neth.).  See Bohmer, supra note 33 (describing the Dutch Supreme Court decision in Everest Estate).X30  However, on December 3, 2024, although it recognized that the Court of Appeal properly concluded that Crimea was part of the Russian Federation under the definition of territory in the Ukraine-Russia BIT, the Dutch Supreme Court overturned the Court of Appeal’s decision because it failed to properly consider evidence submitted by Russia supporting its claims that the investments in question were tainted by illegality.31HR December 6, 2024, ECLI:NL:HR:2024:1812 m.nt., ¶¶ 3.2.1-3.2.2, 3.5.1-3.4.2, 5 (Russian Federation/Everest Estate et al.) (Neth.) (machine translated by Google).  See also Moody, supra note 33 (describing the Dutch Supreme Court decision in Everest Estate).X31

In Lugzor, the claimants—five Ukrainian investors—allege that Russia expropriated their Crimean real estate assets following the 2014 annexation.32Peterson, Russia disputes round-up, supra note 14.X32  The case was formally brought on May 26, 2015, and the tribunal rendered a final award in favor of the investors on October 4, 2022.33Lugzor et al. v. Russia, supra note 22; Damien Charlotin, [Updated] Real estate arbitration arising out of Russia’s 2014 takeover of Crimea concludes with an award, IA Rep. (Mar. 30, 2023).  The decision remains unpublished and the contents undisclosed, except for confirmation that the tribunal rejected Russia’s argument that the investments were not made on its territory.  See Ridhi Kabra, Crimea-related Lugzor v. Russia arbitration clears jurisdictional hurdles, IA Rep.(Dec. 13, 2017).X33

In Naftogaz, the claimants include a Ukrainian state-owned energy firm and other members of the Naftogaz Group who allege that Russia expropriated their assets in the Black Sea following the 2014 annexation.34Naftogaz v. Russian Federation, PCA Case No. 2017-16, Partial Award, ¶¶ 12, 17 (Feb. 22, 2019); Damien Charlotin, In new BIT ruling, Russia found liable for expropriation of Naftogaz assets, IA Rep. (Mar. 1, 2019).X34  The case was formally brought on October 17, 2016.35See Ukraine’s Naftogaz files BIT arbitration against Russia, supra note 15.X35  The tribunal subsequently rendered a partial award confirming jurisdiction and finding in favor of the investor on February 22, 2019, and a final award on quantum on April 12, 2023.36Naftogaz v. Russian Federation, PCA Case No. 2017-16, Partial Award (Feb. 22, 2019); id., Final Award (Apr. 12, 2023).  One arbitrator, Maja Stanivuković, dissented from the awards because she did not agree that Crimea should be considered the “territory” of Russia, and therefore the tribunal lacked jurisdiction ratione loci.  Id., Partial Award, Stanivuković Dissenting Opinion, ¶¶ 40-122 (Feb. 13, 2019).  She also dissented from the final award.  Id., Final Award, Stanivuković Dissenting Opinion (Feb. 8, 2023).  The awards and associated dissenting opinion became public through enforcement proceedings before the US District Court for the District of Columbia.  See Jack Ballantyne, Russia faces enforcement of US $5 billion award in DC, Glob. Arb. Rev. (June 23, 2023).X36  In set-aside proceedings before the Hague Court of Appeal, Russia successfully challenged part of the partial award because the tribunal lacked jurisdiction ratione temporis over investments made prior to 1992.37Hof Den Haag July 19, 2022, ECLI:NL:GHDHA:2022:1295 m.nt. (Russian Federation/Naftogaz et al.) (Neth.) (machine translated by Google).  See Bohmer, supra note 33 (describing the Dutch Supreme Court decision in Naftogaz).X37  Thus, the Court annulled the portions of the partial award related to those investments, but upheld the remainder of the partial award.38Id.X38  On December 6, 2024, the Dutch Supreme Court affirmed the Court of Appeal’s decision, and refused to annul the remainder of the partial award.39HR Dec. 6, 2024, ECLI:NL:HR:2024:1810 m.nt., ¶¶ 4.2.1-4.2.2 (Russian Federation/Naftogaz et al.) (Neth.) (machine translated by Google). See also Moody, supra note 33 (describing the Dutch Supreme Court decision in Naftogaz).X39

In Oschadbank, the claimant is a Ukrainian state-owned bank who alleges that Russia expropriated their Crimean assets following the 2014 annexation.40Oschadbank v. Russian Federation, PCA Case No. 2016-14, Award, ¶ 10 (Nov. 26, 2018); see Peterson, Russia disputes round-up, supra note 14; Russian Federation is hit with $1.3 billion dollar UNCITRAL bilateral investment treaty award, IA Rep. (Nov. 26, 2018).X40  The case was formally brought on January 20, 2016; and the tribunal rendered a final award in favor of the investor on November 26, 2019.41Oschadbank, PCA Case No. 2016-14 at ¶¶ 10, 410.  The final award became public through enforcement proceedings before the US District Court for the District of Columbia.  See Johanna Braun, [Updated with a copy of the Award] Tribunal in previously-unseen award against Russia upheld jurisdiction over Crimea-related claims, and awarded over 1.3 billion USD in compensation, IA Rep. (Apr. 13, 2021).X41  In set-aside proceedings before the Paris Court of Appeal, Russia successfully annulled the final award because the tribunal lacked jurisdiction ratione temporis over the claimant’s banking assets in Crimea, which were made prior to 1992.42Cour d’appel [CA] [regional court of appeal] Paris, ch. com. int., Mar. 30, 2021, 19/04161 (translated by author).  See also Damien Charlotin, Crimea-related 1 billion USD award against Russia is set aside, as Paris court finds that the tribunal lacked jurisdiction, IA Rep. (Mar. 30, 2021).X42  However, the French Cour de Cassation—France’s highest court for civil matters—reinstated the award on the grounds that the question of timing related to the merits of the dispute, which was not reviewable at the set-aside stage.43Cour de cassation [Cass.] [supreme court for judicial matters] 1e civ., Dec. 7, 2022, Bull. civ. 1, No. 877 (Fr.) (translated by author).  See also Lisa Bohmer, French Cour de cassation resurrects billion-dollar Crimea award against Russia, IA Rep. (Dec. 7, 2022).X43

In DTEK, the claimant—Ukraine’s “largest private power and coal producer”—alleges that Russia expropriated their assets following the 2014 annexation.44Russia BIT claims, supra note 16; Lisa Bohmer, [Updated with Award and Separate Opinion] DTEK v. Russia Crimea arbitration concludes with 267 million USD award in favor of Ukrainian claimant, IA Rep. (Nov. 2, 2023); Erik Brouwer, Analysis: UNCITRAL tribunal in DTEK Krymenergo v. Russia upholds jurisdiction over claim for expropriation of Crimean assets, rejects corruption allegations, and awards 200+ million USD to the Ukrainian investor, IA Rep. (Nov. 9, 2023) (explaining DTEK).X44  The case was formally brought on February 16, 2018; and the tribunal rendered a final decision in favor of the investor on November 1, 2023.45DTEK v. Russian Federation, PCA Case No. 2018-41, Award, ¶¶ 18, 1030 (Nov. 1, 2023).  One arbitrator issued a separate opinion related to quantum.  DTEK v. Russian Federation, PCA Case No. 2018-41, Award, Rowley Separate Opinion on Quantum (Nov. 1, 2023).  The final award and associated separate opinion subsequently became public through enforcement proceedings before the US District Court for the District of Columbia.  See Bohmer, supra note 55.X45

In Ukrenergo, the claimant—a Ukrainian state-owned electricity firm—alleges that Russia expropriated the company’s Crimean assets following the 2014 annexation.46Jarrod Hepburn, Ukrainian energy firm Ukrenergo is latest to file a Crimea-related arbitration claim against Russia, IA Rep. (Aug. 29, 2019); Javier Echeverri, Three are in place to hear Ukrenergo’s claims in Crimea-related dispute, IA Rep. (Aug. 6, 2020).X46  The case was formally brought on August 27, 2019; however, aside from knowledge that a decision on bifurcation exists and that the tribunal has upheld jurisdiction over the claim, little information is available on the case proceedings.47See Hepburn, supra note 57; Jack Ballantyne, Ukrainian state entity’s claim against Russia clears hurdle, Glob. Arb. Rev. (Aug. 14, 2024).X47

Lastly, in Akhmetov and Investio, the claimants—a Ukrainian billionaire and one of his companies—allege that Russia expropriated their assets following the 2014 annexation.48Lisa Bohmer, Revealed: Russia succeeds in disqualifying two arbitrators in ongoing and heretofore-confidential Crimea arbitration, IA Rep. (Jan. 23, 2024); Damien Charlotin, Paris Court of Appeal declines to hear Russia’s attempt to set aside procedural order that upheld constitution of tribunal in under-the-radar case, IA Rep. (May 28, 2024).X48  The case was formally brought on February 20, 2019, and the tribunal rendered a partial award confirming jurisdiction on August 16, 2022.49CA Paris, ch. com. int., May 21, 2024, 23/06872, ¶ 2 (translated by author); see Bohmer, supra note 59.X49  Russia subsequently filed an action to set-aside the partial award before the Paris Court of Appeal on November 14, 2022.50As of July 2025, the status of the set-aside proceeding is not publicly available.  See CA Paris, ch. com. int., May 21, 2024, 23/06872, ¶ 7 (translated by author).X50  Russia also challenged all three appointed arbitrators on various grounds, resulting in the disqualification of the chair and the claimant’s appointee in October 2023.51Bohmer, supra note 59.X51  Prior to the chair’s disqualification, the tribunal issued a procedural order (“PO2”) on March 10, 2020, that confirmed the “regularity” of the tribunal’s constitution.52CA Paris, ch. com. int., May 21, 2024, 23/06872, ¶ 5; see Charlotin, supra note 59.X52  In the set-aside proceedings, Russia sought to annul PO2; however, the proceedings were dismissed in May 2024 because PO2 did not definitively decide any matters related to the case’s merits or jurisdiction and therefore, under French lex arbitri, it could not be annulled.53CA Paris, ch. com. int., May 21, 2024, 23/06872, ¶ 16 (translated by author); see Charlotin, supra note 59.X53

Since the first judgment was issued in 2017, the Crimea tribunals have consistently confirmed jurisdiction over their respective disputes and found in favor of the investors.54See supra footnotes 32, 36, 40, 44, 47, 52, 56, & 58.X54  Moreover, in the seven cases55As noted previously, Russia instituted set-aside proceedings against a partial award on jurisdiction in one additional case, Akhmetov and Investio. See footnote 61 and accompanying text. However, because the status of the set-aside proceeding is not publicly available, the case is not included here.X55 subject to set-aside proceedings—Aeroport Belbek, PrivatBank, Everest Estate, Ukranafta, Stabil, Naftogaz, and Oschadbank—the reviewing courts have consistently confirmed that the tribunals correctly concluded jurisdiction ratione loci existed.56See supra footnotes 33, 37, 41-42, 48-50, 53-54.X56

B. Interaction between Jurisdiction Ratione Loci and the term "Territory"

An investment treaty’s geographic scope—jurisdiction ratione loci—depends upon the treaty’s definition of the term “territory.”57UNCTAD, supra note 6, at 17.X57  However, the purpose of defining this term is not to delimit the respective contracting parties’ territory; rather, it is to delimit the protected area for the purposes of applying the treaty.58Id.X58  Thus, states may define “territory” in relation to areas over which the contracting parties’ exercise sovereign rights or jurisdiction; rights to exploration and use of natural resources; or even simply define “territory” in relation to the area where the state exercises jurisdiction without specifying any further criteria.59Id. at 18.X59  States may even define “territory” in a manner that allows the contracting party’s to include their own unique definition.60Id. at 18-19.X60  Consequently, in order to determine whether jurisdiction ratione loci exists, a tribunal must analyze the specific definition of “territory” in the applicable investment treaty.61See Markus P. Beham, The Concept of ‘Territory’ in BITs of Disputing Sovereigns, in Investments in Conflict Zones 139142-171 (Tobias Ackermann & Sebastian Wuschka eds., 2021) (establishing that there are no trends in the definition of “territory,” thus tribunals must always interpret the term in the context of the relevant BIT).X61

C. "Territory" under the Ukraine-Russia BIT

The Ukraine-Russia BIT defines “territory” for the purposes of jurisdiction ratione loci through the interaction between two provisions:  articles 1(4) and 12.  Article 1(4) defines “territory” as “the territory of Ukraine or the territory of the Russian Federation, as well as their respective exclusive economic zones and continental shelf, as defined in conformity with international law.”62Ukraine-Russia BIT, supra note 3, art. 1(4).X62  Article 12 then explains that BIT protection is restricted to those investments made “by the investors of one Contracting Party in the territory of the other Contracting Party.”63Id. art. 12.X63  Thus, the Ukraine-Russia BIT’s territorial scope of protection is limited to those investments made in the “territory”—as defined under article 1(4)—of the respondent-state.64See Miles, supra note 11, at 143-44 (explaining the Ukraine-Russia BIT’s scope of application).X64

According to the Ukrainian investor-claimants in the Crimea cases, the definition of “territory” under article 1(4) is broad, and covers areas under the respondent-state’s effective control—i.e., the respondent-state need only “exercise jurisdiction and control, but not sovereignty as such” over the geographic area for treaty protection to apply.65Oschadbank v. Russian Federation, PCA Case No. 2016-14, Statement of Claim, ¶ 262 (Aug. 26, 2016) (citing a report by claimant’s international legal expert, Professor Malcolm N. Shaw QC).  See, e.g., Stabil v. Russian Federation, PCA Case No. 2015-35, Award on Jurisdiction, ¶ 117 (June 26, 2017); Oschadbank v. Russian Federation, PCA Case No. 2016-14, Award, ¶ 104 (Nov. 26, 2018); Naftogaz v. Russian Federation, PCA Case No. 2017-16, Partial Award, ¶ 149 (Feb. 22, 2019).  See generally Henriietta Yaitska, The Effective Control Test: What Can Arbitral Tribunals Rely on in Relation to the Temporarily Occupied Territories of Ukraine?, 34 Am. Rev. Int’l Arb. 281 (2023) (describing the effective control test and the meaning of “exercising jurisdiction and control” in the context of the occupied and annexed territories of Ukraine).X65  Consequently, because Russia exercised jurisdiction and control over Crimea, the claimants’ investments are within the Ukraine-Russia BIT’s territorial scope of protection.66See, e.g., Stabil, Award on Jurisdiction, ¶ 117; Oschadbank, Award, ¶ 104; Naftogaz, Partial Award, ¶ 149.X66

Conversely, according to Russia,67Initially, Russia declined to participate in any of these proceedings.  See, e.g., Stabil, Award on Jurisdiction, ¶ 81; Naftogaz, Partial Award, ¶ 14; Oschadbank, Award, ¶ 3; see also Athina Fouchard Papaefstratiou, Crimea as Russian Territory for the Purposes of the Russia-Ukraine BIT: Consent v. International Law?, Kluwer Arb. Blog (Feb. 5, 2023) (noting that, rather than participate in the initial proceedings, Russia submitted a letter challenging jurisdiction on the grounds that Russia only assumed an obligation to protect the investments made after it asserted jurisdiction over Crimea).  However, in 2019, following a series of adverse rulings, Russia changed their strategy and began participating in the remaining pending proceedings.  See, e.g., Press Release, Arbitration Between Limited Liability Company Lugzor and Four Others as Claimants and the Russian Federation as Respondent, PCA (Nov. 28, 2019); Djanic, supra note 12.X67 the definition of “territory” under article 1(4) is narrow, covering only the areas under the respondent-state’s sovereign control—i.e., the respondent-state must exercise sovereign rights over the geographic area.68See, e.g., Braun, supra note 52 (describing Russia’s position once it began participating in Oschadbank).X68  Consequently, because both Ukraine and Russia claim sovereign rights over Crimea, the claimants’ investments are not within the Ukraine-Russia BIT’s territorial scope of protection.69See, e.g., id.X69

Lastly, Ukraine—which intervened as a non-disputing party in most of the Crimea cases—agreed with the Ukrainian investor-claimants’ interpretation of “territory.”70See PrivatBank & Finance Co. Finilon, LLC v. Russian Federation, PCA Case No. 2015-21, Interim Award, ¶¶ 129-40 (Mar. 27, 2017); Stabil, Interim Award, ¶¶ 82-83; Naftogaz, Partial Award, ¶¶ 159-60; Oschadbank, Award, ¶¶ 33-36, 184-88.X70  According to Ukraine, “territory” means the area over which the respondent-state exercises effective control.71See, e.g., PrivatBank, Interim Award, ¶ 131; Stabil, Award on Jurisdiction, ¶ 83; Naftogaz, Partial Award, ¶ 159.X71  Thus, while Crimea continues to be “an inseparable part” of Ukraine, the “practical reality of the Russian occupation and, accordingly, its current exercise of jurisdiction and effective control” over Crimea means that Russia has “assumed international obligations in its administration of Crimea,” including obligations under the Ukraine-Russia BIT for Crimea-based investments.72See, e.g., PrivatBank, Interim Award, ¶ 129; Naftogaz, Partial Award, ¶ 15.X72  Consequently, the definition of “territory” does not exclude application to Ukrainian investors and investments in Crimea.73See, e.g., PrivatBank, Interim Award, ¶ 130.X73

Despite significant scholarly debate over the Crimea cases, few scholars—if any—have discussed these issues using the tribunals’ analyses themselves.1Compare Dumberry, supra note 4 (arguing that the cases were decided incorrectly because the tribunals lacked jurisdiction ratione loci), with Happ & Wuschka, supra note 11 (arguing that both the law of treaties and customary international law support the extension of a host state’s investment treaties to annexed or occupied territories).X1  This is likely because, until recently, the awards were confidential; however, because of enforcement proceedings, most have now become public—thus granting insight into the tribunals’ reasoning.2Only two cases—Lugzor and Ukrenergo—remain confidential.  See An update on disputes under the Russia-Ukraine BIT, IA Rep. (July 6, 2017); Hepburn & Kabra, supra note 14 (describing the unpublished Ukranafta award and the identical Stabil award); Peterson, supra note 36 (also describing Ukranafta and Stabil); Charlotin, supra note 36 (also describing Ukranafta and Stabil); Braun, supra note 52 (describing Oschadbank); Bohmer, supra note 55 (describing DTEK); Kabra, supra note 44 (describing Lugzor); Charlotin, supra note 44 (describing Lugzor).X2

This section will first dissect the tribunals’ conclusions and reasoning to identify any trends in the tribunals’ analyses.  It will then address several potential impacts that these trends may have on future investment tribunals addressing disputes over investments within occupied or annexed territories. Lastly, the section will address the potential consequences of the Crimea cases on the international rules for situations of occupation and annexation.

A. Interpretation of "Territory"

In every publicly available award, and in all the related set-aside proceedings, the courts and tribunals have adopted the investor-claimants’ definition of “territory”—i.e., effective control, meaning the “geographical area over which a party exercises jurisdiction or control.”3See DTEK v. Russian Federation, PCA Case No. 2018-41, Award, ¶¶ 297-99 (Nov. 1, 2023) (listing the prior Crimea cases that adopted the effective control standard); Damien Charlotin, Analysis: Naftogaz tribunal majority finds that all investments fall within the temporal scope of the Ukraine-Russia BIT, and orders Russia to pay 4.2 billion USD on account of an expropriation of the claimant’s Crimean assets, IA Rep. (June 26, 2023) (explaining set-aside proceedings where the courts agreed territory means effective control).  Two arbitrators disagreed with the majorities in their respective cases: in Naftogaz, one arbitrator disagreed with the conclusion that Russia could be held liable and therefore issued a dissent to both the partial and final awards; and in DTEK, one arbitrator disagreed with the tribunal’s quantum calculation, and issued a separate opinion.  See Naftogaz v. Russian Federation, PCA Case No. 2017-16, Partial Award, Stanivuković Dissenting Opinion (Feb. 13, 2019); DTEK v. Russian Federation, PCA Case No. 2018-41, Award, Rowley Separate Opinion on Quantum (Nov. 1, 2023); see also PrivatBank, Interim Award, ¶ 183; Hepburn & Kabra, supra note 14 (describing the unpublished Ukranafta award and the identical Stabil award); Oschadbank ¶ 212; Hepburn, supra note 14 (describing the unpublished Everest Estate award).X3  In reaching this conclusion, each tribunal analyzed the definition of “territory” in article 1(4) of the Ukraine-Russia BIT using the general rule of treaty interpretation: a treaty must be interpreted “in good faith” using the “ordinary meaning” of the treaty’s terms, “in their context,” and in light of the treaty’s “object and purpose.”4See, e.g., DTEK, Award, ¶ 274; Stabil, Award on Jurisdiction, ¶¶ 164-65.  See generally Anthony Aust, Modern Treaty Law and Practice 205-26 (3d ed. 2013) (explaining this rule of treaty interpretation).X4  These interpretation requirements are addressed below.

i. "In good faith"

As a general principle, treaties must be performed in good faith; therefore, because interpretation is part of treaty performance, the process of interpretation must also be performed in good faith.5Id. at 208.X5  In their analyses, at least three of the Crimea tribunals cited the fundamental principle underlying good faith performance of treaties—pacta sunt servanda—as justification for why Russia could not avoid obligations under the Ukraine-Russia BIT.6See, e.g., PrivatBank, Interim Award, ¶¶ 167, 187; Naftogaz, Partial Award, ¶ 178; Stabil, Award on Jurisdiction, ¶¶ 164-70.X6  Further, at least five tribunals held that interpreting “territory” as requiring sovereign control would remove protection from Crimea without a reasonable justification, thus undermining the principle of good faith.7See, e.g., PrivatBank, Interim Award, ¶¶ 167, 187; Naftogaz, Partial Award, ¶ 178; Stabil, Award on Jurisdiction, ¶¶ 164-70; Hepburn, supra note 14(describing the unpublished Everest Estate award); Charlotin, supra note 87 (quoting the unpublished Aeroport Belbek award).X7  Accordingly, disregarding Russia’s effective control and de facto authority over the domestic and international relations of Crimea would “create a legal void, a bubble, in the application of the Treaty in respect to [Crimea] that was never contemplated and should not be countenanced.”8PrivatBank, Interim Award, ¶ 249 (identical to the unpublished Aeroport Belbek award); Naftogaz, Partial Award, ¶ 178 (quoting the unpublished Aeroport Belbek award); Stabil, Award on Jurisdiction, ¶ 174 (quoting the unpublished Aeroport Belbek award).X8  Likewise, interpreting “territory” in a manner that removed protection from Crimea would “denude the treaty of effect,” thus violating the principle of good faith.9PrivatBank, Interim Award, ¶¶ 167, 249.X9  Following this line of reasoning, a tribunal will contradict the principle of good faith if it interprets “territory” in a manner that allows the aggressor-state’s actions to create previously nonexistent geographic limitations on an investment treaty’s scope.10See, e.g., Bohmer, supra note 37 (describing the logic in Swiss Federal Tribunal’s set-aside judgment).X10

Some tribunals also applied the doctrine of estoppel to prevent Russia from avoiding obligations under the Ukraine-Russia BIT.  According to at least five tribunals, Russia’s occupation and annexation of Crimea created a legal obligation upon which third parties may rely.11See, e.g., Stabil, Award on Jurisdiction, ¶¶ 171-74; Hepburn & Kabra, supra note 14 (describing the unpublished Ukranafta award and the identical Stabil award); Naftogaz, Partial Award, ¶¶ 179-81, 222-23; DTEK, Award, ¶¶ 280-94 (holding Russia must be “estopped” from arguing that a territory “unambiguously declare[d]” as sovereign is nevertheless not protected by the Ukraine-Russia BIT); Hepburn, supra note 14 (describing the unpublished Everest Estate award).X11  For the Naftogaz and Everest Estate tribunals, this obligation was created by Russia’s occupation alone.12Naftogaz, Partial Award, ¶ 177; Hepburn, supra note 14 (describing the unpublished Everest Estate award).X12  Alternatively, for the Ukrnafta and Stabil tribunals, the obligation was created by Russia’s unilateral public declaration that Crimea was part of Russian territory.13Stabil, Award on Jurisdiction, ¶¶ 171-74; Hepburn & Kabra, supra note 14 (describing the unpublished Ukranafta award and the identical Stabil award).X13  Combining these approaches, for the DTEK tribunal, both Russia’s unilateral public declaration annexing Crimea and their other actions undertaken as part of the occupation functioned together to create this obligation.14DTEK, Award, ¶¶ 294-95.X14  Regardless of the trigger for the legal obligation, the five tribunals agreed that the doctrine of estoppel prevented Russia from simultaneously claiming Crimea as an integral part of its territory while also disclaiming legal obligations on that territory.15Hepburn, supra note 14 (describing the unpublished Everest Estate award); Hepburn & Kabra, supra note 14 (describing the unpublished Ukranafta award and the identical Stabil award); Stabil, Award on Jurisdiction, ¶¶ 171-74; Naftogaz, Partial Award, ¶¶ 179-81; DTEK, Award, ¶¶ 293-96.X15  Following this line of reasoning, a tribunal may apply the doctrine of estoppel to prevent an aggressor-state from simultaneously claiming a territory as its own while also denying legal obligations—created by the occupation, declaration of annexation, or a combination of both—on that territory.

However, at least one arbitrator disagreed that good faith could justify interpreting “territory” as effective control.16Naftogaz, Partial Award, ¶¶ 66-69.X16  According to the dissenting arbitrator in Naftogaz, reliance on good faith was unreasonable because the assets in question started as domestic investments by Ukrainian citizens that were never previously protected by the Ukraine-Russia BIT.17Id. ¶ 67.X17  Moreover, Russia’s official annexation of Crimea could not amount to an interpretive declaration of the term “territory”—and thus impose a legal obligation upon the state—unless and until Ukraine agreed with Russia’s declaration.18Id. ¶¶ 78-82.  Note that the dissent raised this argument sua sponte as the majority in Naftogaz found that the BIT did not “attach by reasons of Russian declarations but by reason of Russian conduct.”  Naftogaz, Partial Award, ¶ 177.X18  Thus, following the dissent’s reasoning, good faith cannot be used to protect individuals who were never intended to be protected by an investment treaty; and an interpretative declaration requires the consent of both treaty parties.

ii. "Ordinary meaning"

Generally, “ordinary meaning” analyses are highly influential in the treaty interpretation process because, unless established to the contrary, a term’s ordinary meaning reflects the parties’ intent.19Aust, supra note 88, at 209.X19  In the Crimea cases, the tribunals each heavily analyzed the “ordinary meaning” of “territory;” nevertheless, they differed significantly on which factors they considered relevant to this analysis.

The first potentially relevant factor is the legal definition of “territory.”  Although the Ukraine-Russia BIT’s verbatim text does not mention sovereignty, territory could nevertheless be defined in relation to sovereignty if the legal definition of “territory” implied this was the parties’ intent.20See, e.g., Hof [ordinary court of appeals] Den Haag [The Hague] July 19, 2022, ECLI:NL:GHDHA:2022:1296 m.nt., ¶¶ 5.5.8, 5.5.10 (Russian Federation/Aeroport Belbek) (Neth.) (machine translated by Google).X20  However, the tribunals disagreed on which sources should be relied upon to establish the legal definition.  On the one hand, at least six tribunals referenced Russian, Ukrainian, and / or English legal dictionaries, which do not define “territory” with reference to sovereignty, to conclude that the Ukraine-Russia BIT’s definition of “territory” need not be confined to sovereign control.21Hepburn & Kabra, supra note 14 (describing the unpublished Ukranafta award and the identical Stabil award); Stabil, Award on Jurisdiction, ¶ 140; Hepburn, supra note 14 (describing the unpublished Everest Estate award); Naftogaz, Partial Award, ¶ 152; DTEK, Award, ¶ 256; Oschadbank, ¶ 204.X21  On the other hand, the dissenting arbitrator in Naftogaz relied upon the definition under international law, which defines “territory” with reference to sovereignty, to conclude that the Ukraine-Russia BIT’s definition of “territory” must be limited to sovereign control.22Naftogaz, Partial Award, Stanivuković Dissenting Opinion, ¶¶ 47-51; see also id. ¶ 52 (noting that the contracting parties did not feel the need to explicitly define “territory” in reference to sovereignty since the link was “self-evident”).X22  Accordingly, while a tribunal may apply the definition of “territory” under international law, it is possible—and potentially more likely—that the tribunal applies the definition provided in the relevant language’s legal dictionaries.

The second potentially relevant factor is the contracting parties’ prior treaty practice.  As Ukraine explained in its non-disputing party submissions, Ukraine normally specifically defined “territory” in its investment treaties with reference to sovereignty; however, in the Ukraine-Russia BIT, the contracting parties explicitly did not do so because Russia ordinarily left references to “territory” open-ended.23See, e.g., PrivatBank, Interim Award, ¶ 131 (citing Ukraine’s non-disputing party submission).X23  At least five tribunals referenced Ukrainian and Russian treaty practice in their “ordinary meaning” analyses.24DTEK, Award, ¶¶ 256-60; PrivatBank, Interim Award, ¶ 185; Stabil, Award on Jurisdiction, ¶ 142; Hepburn & Kabra, supra note 14 (describing the unpublished Ukranafta award and the identical Stabil award); Naftogaz, Partial Award, ¶ 172.X24  For example, the DTEK tribunal cited the parties’ treaty practice both before and after the annexation of Crimea, which demonstrated that both contracting parties would explicitly limit the definition of territory when such a limitation was intended.25DTEK, Award, ¶¶ 257-60.X25  Thus, since the contracting parties did not explicitly limit the definition in the Ukraine-Russia BIT, the tribunals concluded that no such restriction was intended.26See, e.g., id.X26

The third potentially relevant factor is the grammar of the pertinent articles.  In particular, the tribunals’ analyses concentrated on the specific wording of the qualifier in article 1(4): “as defined in conformity with international law.”27Ukraine-Russia BIT, supra note 3, art. 1(4); see also PrivatBank, Partial Award, ¶ 21 (describing the tribunal’s questions to the parties, which included a request to “comment on the relevance, if any” of the qualifier).X27  If the qualifier applied to “territory,” then the term must be interpreted as requiring sovereign control because the Crimean annexation was illegal under international law.28See, e.g., Hof Den Haag July 19, 2022, ECLI:NL:GHDHA:2022:1294 m.nt., ¶ 5.5.6 (Russian Federation/JSC CB Privatbank) (Neth.) (machine translated by Google) (noting the Russian argument that this qualifier confines the definition of “territory” to sovereign territory).X28  However, at least five tribunals held that the qualifier referred only to the terms immediately preceding it—“as well as their respective exclusive economic zones and continental shelf”—and therefore it did not affect the definition of “territory” as a whole.29Emphasis added.  See, e.g., PrivatBank, Interim Award, ¶ 185; Hof Den Haag July 19, 2022, ECLI:NL:GHDHA:2022:1296 m.nt., ¶ 5.5.1 (Russian Federation/Aeroport Belbek) (Neth.) (machine translated by Google) (quoting the unpublished Aeroport Belbek award); Naftogaz, Partial Award, ¶¶ 169-70;Stabil, Award on Jurisdiction, ¶¶ 141, 151; Hepburn & Kabra, supra note 14 (describing the unpublished Ukranafta award and the identical Stabil award). Additionally, in Everest Estate, the tribunal noted the qualifier could have implications, but they ultimately side-stepped the issue by instead asserting that the Ukraine-Russia BIT’s territorial scope was not at issue because it had always applied to Crimea in some way.  Hepburn, supra note 14 (describing the unpublished Everest Estate award).X29  Furthermore, at least three tribunals justified this conclusion by citing Russian treaty practice, wherein similar investment treaties included the qualifier only when Russia shared a maritime border with the other contracting state party, thus signifying the qualifier only refers to these maritime zones and not “territory” as a whole.30See, e.g., PrivatBank, Interim Award, ¶ 185; Stabil, Award on Jurisdiction, ¶ 141; Hepburn & Kabra, supra note 14 (describing the unpublished Ukranaftaaward and the identical Stabil award).X30  Consequently, “consistent with the ordinary meaning of the provision,” these tribunals agreed that the qualifier does not limit the definition of “territory,”meaning it is irrelevant whether Russia acquired Crimea in contravention of international law.31See, e.g., PrivatBank, Interim Award, ¶ 185.X31

At least one tribunal, DTEK, addressed a separate grammar issue: Russia’s argument that the use of “of,” “its,” and “or” in article 1(4) indicated that “territory” means “sovereign territory.”32DTEK, Award, ¶¶ 261-63; see also id. ¶¶ 231-32 (describing the Russian argument).X32  However, the tribunal rejected this argument, concluding instead that these terms made no difference to the determination of whether “territory” means sovereign control or effective control.33Id. ¶ 264.X33

The fourth potentially relevant factor is timing.  At least one tribunal and multiple courts in set-aside proceeding addressed whether “territory” should be defined in reference to its “contemporaneous meaning.”34See, e.g., Hof Den Haag July 19, 2022, ECLI:NL:GHDHA:2022:1296 m.nt., ¶ 5.5.9 (Russian Federation/Aeroport Belbek) (Neth.) (machine translated by Google); DTEK, Award, ¶¶ 265-66.X34  According to Russia, Crimea could not be considered Russian territory under the Ukraine-Russia BIT because Crimea was part of Ukraine at the time the treaty was signed.35See, e.g., DTEK, Award, ¶¶ 265-66.X35  However, in DTEK, the tribunal rejected this argument because there was no indication that the parties wished to restrict the geographic scope of the Ukraine-Russia BIT to only those areas under their respective control as of 1998.36Hof Den Haag July 19, 2022, ECLI:NL:GHDHA:2022:1296 m.nt., ¶ 5.5.9 (Russian Federation/Aeroport Belbek) (Neth) (machine translated by Google); Hof Den Haag July 19, 2022, ECLI:NL:GHDHA:2022:1297 m.nt., ¶ 5.4.8 (Russian Federation/Everest Estate) (Neth) (machine translated by Google).); Hof Den Haag July 19, 2022, ECLI:NL:GHDHA:2022:1295 m.nt., ¶ 5.5.9 (Russian Federation/Naftogaz) (Neth) (machine translated by Google).); Hof Den Haag July 19, 2022, ECLI:NL:GHDHA:2022:1294 m.nt., ¶ 5.7.11 (Russian Federation/JSC CB Privatbank) (Neth) (machine translated by Google); Bundesgericht [BGer] [Federal Supreme Court] Oct. 16, 2018, 4A_398/20117, ¶¶ 4.3.1-4.3.2 (Switz.) (machine translated by Google).X36  Likewise, the courts in subsequent set-aside proceedings concluded that “territory” should be determined in reference to the areas under the contracting parties’ effective control as of the date of the alleged treaty breach.37See, e.g., DTEK, Award, ¶ 266.X37

Lastly, the fifth, and perhaps most contentious, potentially relevant factor is the application of article 29 of the Vienna Convention on the Law of Treaties (VCLT), which provides the general rule on the territorial scope of treaties.38Vienna Convention on the Law of Treaties art. 29, May 23, 1969, 1155 U.N.T.S. 331 (1969) [hereinafter VCLT].X38  In PrivatBank, the tribunal justified interpreting “territory” as requiring only effective control because “territory” in VCLT article 29 is defined broadly to include any “territory for which a State has assumed responsibility in international law.”39PrivatBank, Interim Award, ¶¶ 185-88.X39  The tribunal also cited this article when justifying the adoption of a test from the rules on state succession:  if the respondent-state is responsible for the international relations of a geographic area, jurisdiction or control exists for the purposes of establishing effective control.40Id. ¶ 174.X40  Since PrivatBank, at least six other tribunals have adopted similar tests and reasoning.41Hof Den Haag July 19, 2022, ECLI:NL:GHDHA:2022:1296 m.nt., ¶¶ 5.5.10-5.5.14 (Russian Federation/Aeroport Belbek) (Neth.) (machine translated by Google) (referring to the unpublished Aeroport Belbek award); Stabil, Award on Jurisdiction, ¶¶ 146-48; Hepburn & Kabra, supra note 14 (describing the unpublished Ukranafta award and the identical Stabil award); Oschadbank ¶¶ 213-14; Hof Den Haag July 19, 2022, ECLI:NL:GHDHA:2022:1297 m.nt., ¶¶ 5.4.2.11, 5.4.3.1, 5.4.11-5.4.12 (Russian Federation/Everest Estate) (Neth.) (machine translated by Google) (describing the unpublished Everest Estate award); Naftogaz, Partial Award, ¶¶ 167-68.X41  Multiple courts in set-aside proceedings have equally agreed that VCLT article 29 supports the effective control definition.42See, e.g., Hof Den Haag July 19, 2022, ECLI:NL:GHDHA:2022:1296 m.nt., ¶ 5.5.14 (Russian Federation/Aeroport Belbek) (Neth(machine translated by Google).); Hof Den Haag July 19, 2022, ECLI:NL:GHDHA:2022:1294 m.nt., ¶¶ 5.7.13-5.7.17 (Russian Federation/JSC CB Privatbank) (Neth) (machine translated by Google); BGer Oct. 16, 2018, 4A_398/20117, ¶ 4.3.2 (Switz.).X42

However, the majority and dissenting opinions in Naftogaz demonstrate the contentious nature of this reasoning.43See Naftogaz, Partial Award; Naftogaz, Partial Award, Stanivuković Dissenting Opinion; see also Charlotin, supra note 87 (describing the Naftogaz majority and dissenting opinions).X43  Representing one side of the debate, the majority agreed with the above conclusion, and added that the article’s reference to “territory” means effective control because the International Law Commission’s commentary to VCLT article 29 does not include references to “sovereignty” or “lawfulness.”44Naftogaz, Partial Award, ¶¶ 167-68.X44  Conversely, representing the other side of the debate, the dissent asserted that reliance on VCLT article 29 was flawed because, based on the general definition of “territory” under international law, the word “territory” in the VCLT means “sovereign territory.”45Naftogaz, Partial Award, Stanivuković Dissenting Opinion, ¶¶ 70-73.X45  Moreover, because VCLT article 73 explicitly clarifies that the VCLT provisions cannot “prejudice” questions arising from state succession, the definition of “territory” under article 29 cannot include occupied territory under the effective control of another state.46Id. ¶ 74.X46  Accordingly, although many Crimea tribunals have utilized VCLT article 29 in their reasoning, the applicability of article 29 to the territorial scope of treaties in situations of occupation and annexation is not a foregone conclusion.

In conclusion, five factors are potentially relevant to an “ordinary meaning” analysis in disputes involving investments on occupied or annexed territories:  the legal definition of “territory”, the contracting parties’ prior treaty practice, the grammar utilized in the pertinent articles, timing, and the application of VCLT article 29.  A tribunal may analyze all these factors, or it may analyze a combination of only those most relevant to the factual and legal situation at hand.  Ultimately, though, the goal of the analysis is to determine the contracting parties’ intended meaning of the term in question.

iii. "In their context"

A treaty’s context means the treaty’s text, preamble, annexes, and any related agreements or instruments existing at the time of the treaty’s creation.47VCLT, supra note 122, art. 31(1); Georg Nolte, Treaties and Their Practice—Symptoms of Their Rise or Decline 335 (2019).X47  Generally, the Crimea tribunals focused their context analyses on the Ukraine-Russia BIT’s other references to “territory.”  The term “territory” was used seventeen times throughout the Ukraine-Russia BIT, generally “with a view toward the ability effectively to legislate and to enforce its laws.”48Oschadbank ¶¶ 207-08.X48  Thus, for at least five tribunals, “territory” means effective control because, in Crimea, Russia was exercising the powers to which “territory” is linked elsewhere in the Ukraine-Russia BIT.49See, e.g., DTEK, Award, ¶¶ 267-70; Stabil, Award on Jurisdiction, ¶ 150; Hepburn & Kabra, supra note 14 (describing the unpublished Ukranafta award and the identical Stabil award); Oschadbank ¶¶ 207-08; Naftogaz, Partial Award, ¶¶ 161-82.  But see Naftogaz, Partial Award, Stanivuković Dissenting Opinion, ¶¶ 43-45 (rejecting this conclusion because it is “incompatible with international law”).X49  Following this line of reasoning, a tribunal may conclude that “territory” for the purposes of jurisdiction ratione loci refers to effective control when the other references to “territory” in the treaty are tied to the ability to legislate and enforce laws.

Additionally, at least one tribunal—DTEK—considered the specific formulation of article 1(4):  by referencing the exclusive economic zone and continental shelf, which are not sovereign territories, the contracting parties indicated that the meaning of “territory” does not include a “connection between protected land areas and sovereignty.”50DTEK, Award, ¶¶ 267-68.X50  In later set-aside proceedings, the Hague Court of Appeals separately agreed with this approach, noting that the inclusion of “territory” next to exclusive economic zones and continental shelfs implies no intent to require sovereign control.51Hof Den Haag July 19, 2022, ECLI:NL:GHDHA:2022:1296 m.nt., ¶ 5.5.8 (Russian Federation/Aeroport Belbek) (Neth.) (machine translated by Google).X51  Following this line of reasoning, a tribunal may conclude that “territory” refers to effective control when the treaty defines it in reference to territorial zones that are not sovereign territories.

iv. "Object and purpose"

A treaty’s terms must be interpreted using any special meaning intentionally given to it by the contracting parties.52VCLT, supra note 122, art. 31(4); Nolte, supra note 131, at 331.X52  As the Ukrainian non-disputing party submissions explain, the contracting parties intentionally included a non-restrictive approach to defining territory in the Ukraine-Russia BIT, which does not tie the meaning of “territory” to the concept of state sovereignty or even lawful rule, to ensure the broadest scope of protection.53See, e.g., PrivatBank, Interim Award, ¶ 133 (citing the Ukrainian non-disputing party submission).X53  At least five tribunals concluded that the object and purpose of the Ukraine-Russia BIT—enhancing economic cooperation between the contracting parties and safeguarding foreign investments54See Stabil, Award on Jurisdiction, ¶ 154; Hof Den Haag July 19, 2022, ECLI:NL:GHDHA:2022:1296 m.nt., ¶ 5.9.7.1 (Russian Federation/Aeroport Belbek et al.) (Neth.) (machine translated by Google).X54—supported a broader interpretation of “territory” that extended protections to Ukrainian investors with investments in Crimea.55Hepburn, supra note 14 (describing the unpublished Everest Estate award); Stabil, Award on Jurisdiction, ¶ 154; Hepburn & Kabra, supra note 14 (describing the unpublished Ukranafta award and the identical Stabil award); Oschadbank ¶¶ 209-12; DTEK, Award, ¶¶ 271-73.X55  Likewise, at least three tribunals concluded that restricting “territory” based on sovereignty would undermine the Ukraine-Russia BIT’s object and purpose by excluding investments based on a contracting state party’s territorial expansion, thus leaving investors unprotected despite the fact that a contracting party exercised exclusive control over Crimea.56See, e.g., Stabil, Award on Jurisdiction, ¶ 158; Hepburn & Kabra, supra note 14 (describing the unpublished Ukranafta award and the identical Stabil award);DTEK, Award, ¶¶ 271-73.X56  Following this line of reasoning, if a treaty’s object and purpose includes enhancing economic cooperation or safeguarding foreign investments, a tribunal may conclude that “territory” must be defined broadly to ensure the widest amount of protection.

However, one arbitrator fundamentally disagreed with this logic.  According to the dissenting arbitrator in Naftogaz, because the ongoing conflict makes future investments unlikely, a broad definition of “territory” creates no added value for the purposes of attracting investments.57See Naftogaz, Partial Award, Stanivuković Dissenting Opinion, ¶¶ 61-65.X57  Moreover, “efforts to attain [these purposes] by extensive interpretation of the terms of the Ukraine-Russia BIT will only make matters worse between the Contracting Parties.”58Id. ¶ 65.X58  Thus, under this line of reasoning, if a treaty’s object and purpose includes enhancing economic cooperation or safeguarding foreign investments, situations of inter-state armed conflict would fundamentally undermine the object and purpose, and therefore the object and purpose cannot be used to support a broader interpretation of “territory.”

B. Implications for international investment law

In addition to the Crimea cases, the Russian military invasion of Ukraine in 2022 has prompted a multitude of potential claims by Ukrainian nationals and state-owned entities against the Russian Federation.  For example, in April 2023, the Ukrainian state nuclear company Energoatom indicated its intent to invoke the Ukraine-Russia BIT to bring a US $3 billion claim for expropriation of the Zaporizhzhia nuclear power plant and other assets in occupied parts of Ukraine.59Jack Ballantyne, Ukrainian state nuclear company threatens claim against Russia, Glob. Arb. Rev. (Apr. 17, 2023).X59  That same month, Ukrainian billionaire Rinat Akhmetov launched an investment treaty claim under the Ukraine-Russia BIT for expropriation of assets in the Donetsk and Luhansk regions.60Jones, supra note 12.X60  Moreover, in June 2024, the Ukrainian state-owned hydropower company notified Russia of a potential US $2.7 billion claim under the Ukraine-Russia BIT over the destruction of one of its power plants.61Toby Fisher, Ukrainian state entity puts Russia on notice over destruction of hydro plant, Glob. Arb. Rev. (June 6, 2024); Jack Ballantyne, Russia faces claims over damage to Ukrainian hydro assets, Glob. Arb. Rev. (Jan. 15, 2024).X61  Thus, the issues raised in the Crimea cases will need to be addressed in pending and future international investment disputes.

Since the Crimea cases raised legal questions that did not readily fit into any existing matrix of legal analysis, the tribunals adopted a novel approach towards analyzing the geographic area protected by the Ukraine-Russia BIT.  However, this new matrix of legal analysis prompted scholarly debate regarding the consequences and implications of the Crimea cases on future international investment disputes.62See supra note 11.X62  Accordingly, in light of the trends in the tribunals’ analyses addressed in the prior section, this section addresses several of the most prominent issues and implications, and how each may affect future investment tribunals.

First, the Crimea cases raise issues related to the principle of non-recognition.63For an explanation of the principle of non-recognition, see generally Ian Brownlie, International Law and the Use of Force by States 410 (1963).X63  Under this principle, states have a duty not to recognize the legality of situations that violate international law and to refrain from rendering any assistance or support to the maintenance of such violations.  Commentators have heavily criticized the Crimea tribunals for effectively recognizing an illegal occupation, in violation of this principle.64See, e.g., Stefan Lorenzmeier, Investment Disputes in Annexed Crimea from the Perspective of International Law, in Investments in Conflict Zones 84, 91-98 (Tobias Ackermann & Sebastian Wuschka eds., 2021).X64   However, this criticism is illogical.  The principle of non-recognition serves to prevent states from benefiting from their wrongful actions.65See Kit De Vriese, The Application of Investment Treaties in Occupied or Annexed Territories and ‘Frozen’ Conflicts- Tabula Rasa or Occupata?, inInvestments in Conflict Zones 319, 329-31 (Tobias Ackermann & Sebastian Wuschka eds., 2021).X65  Thus, by holding an occupying power accountable under an investment treaty for its conduct in the occupied territory, the underlying purpose of the principle is achieved.66See id. at 343-46.  Investor-state dispute settlement can be used as a Catch-22:  either the tribunal declines jurisdiction because of the occupation, therefore implicitly ruling on sovereignty; or rules on the merits based on effective control, therefore holding occupier accountable for their misdeeds.  Cf. Miles, supra note 11, at 147-48 (opining that the tribunal in Stabil “ben[t] over backwards to square the circle” when it refused to consider Crimea as subject to Russian sovereignty by ruling “territory” referred to all areas in which Russia exercised jurisdiction, while also refusing to consider whether this exercise of jurisdiction was lawful).X66  In fact, Ukraine effectively “weaponized” the investor-state dispute system to punish Russia for the occupation of Crimea.67Id. at 140-50.X67  Consequently, future occupied states may equally “weaponize” investment tribunals as a means to punish occupying states.68See Happ & Wuschka, supra note 11.X68

Second, the Crimea cases raise issues related to joint interpretative statements.69For an explanation of “joint interpretative statements,” see generally Lucas Clover Alcolea, States as Masters of (Investment) Treaties: The Rise of Joint Interpretative Statements, 22 Chinese J. Int’l L. 479 (2023).X69  The Crimea tribunals essentially treated Russia’s declaration annexing Crimea and Ukraine’s non-disputing party submissions, recognizing Russia’s control over Crimea, as a “joint-interpretative statement” of the meaning of “territory.”70See supra section III(A).X70  This conclusion was logical because viewing Crimea as part of Russian territory served the interests of the parties.71Peter Tzeng, Sovereignty over Crimea: A Case for State-to-State Investment Arbitration, 41 Yale J. Int’l L. 459, 462 (2016); cf. De Vriese, supra note 150, at 341-43 (discussing the aggressor-state’s interest in an investment dispute involving occupied or annexed territories).X71  However, the Crimea tribunals were not required to give weight to a shared treaty interpretation in an ongoing proceeding.72Papaefstratiou, supra note 78.X72  Likewise, at least one arbitrator disagreed with this conclusion because Ukraine did not consent to Russia’s annexation.73See supra note 102 and accompanying text.X73  Nevertheless, future tribunals may equally treat a declaration of annexation and a non-disputing party submission as a joint-declarative statement if doing so serves the parties’ interest.

Third, the Crimea cases raise issues related to the doctrine of indispensable issues.74For an explanation of the doctrine of indispensable issues, see generally Peter Tzeng, The Implicated Issue Problem: Indispensable Issues and Incidental Jurisdiction, 50 N.Y.U. J. Int’l L. Pol. 447 (2018).X74  Under this doctrine, a tribunal must decline jurisdiction over a dispute if deciding the dispute would require making a determination of the lawfulness of matters outside the tribunal’s jurisdiction.75See id. at 471.X75  Accordingly, if an investment dispute would inherently require the tribunal to make a decision on the sovereignty of a disputed territory, the investment tribunal must decline jurisdiction over the dispute.76See Peter Tzeng, The Doctrine of Indispensable Issues: Mauritius v. United Kingdom, Philippines v. China, Ukraine v. Russia, and Beyond, EJIL: Talk! (Oct. 14, 2016), https://www.ejiltalk.org/the-doctrine-of-indispensable-issues-mauritius-v-united-kingdom-philippines-v-china-ukraine-v-russia-and-beyond/.X76  In its submissions, Russia implicitly invoked this doctrine by asserting that the tribunals lacked jurisdiction over any question related to Crimea since answering these questions would require ruling on the sovereignty of disputed territory.77Damien Charlotin, Lisa Bohmer, & Luke E. Peterson, Russia round-up: An update on 19 treaty-based arbitrations against the state, IA Rep. (May 17, 2020).X77  In support, Russia cited a United Nations Convention on the Law of the Sea Annex VII tribunal that previously declined jurisdiction over Ukrainian claims because adjudicating the dispute required the tribunal to rule on the sovereignty over the disputed territory of Crimea, which would be beyond the tribunal’s competence.78Hof Den Haag July 19, 2022, ECLI:NL:GHDHA:2022:1294 m.nt., ¶ 5.5.8 (Russian Federation/JSC CB Privatbank) (Neth.) (machine translated by Google).  Russia’s argument refers to the following case:  Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukr. v. Russ.), PCA Case No. 2017-06, Award on Preliminary Objections (Feb. 21, 2020).X78  However, by finding that the definition of “territory” within the Ukraine-Russia BIT required only effective control, the Crimea tribunals effectively circumvented the question of sovereignty—and the doctrine of indispensable issues.79See Hof Den Haag July 19, 2022, ECLI:NL:GHDHA:2022:1294 m.nt., ¶ 5.5.6 (Russian Federation/JSC CB Privatbank) (Neth.) (machine translated by Google) (noting that, by defining “territory” in terms of effective control, the tribunal avoided ruling on the sovereign status of Crimea); Hof Den Haag July 19, 2022, ECLI:NL:GHDHA:2022:1296 m.nt., ¶ 5.5.1 (Russian Federation/Aeroport Belbek) (Neth.) (machine translated by Google) (quoting the unpublished Aeroport Belbek award, which reached the same conclusion); cf. Tzeng, supra note 161 (noting that a tribunal could avoid the question of sovereignty by addressing effective control instead of sovereign control).X79  Thus, when the interpretation of “territory” supports the use of effective control over sovereign control, future tribunals may follow the example set by the Crimea tribunals to avoid the doctrine of indispensable issues.

Fourth, the Crimea cases raise issues related to the application of rules from other areas of international law.  To address the novel legal questions presented in the parties’ arguments, the Crimea tribunals were forced to search for and apply analogous legal frameworks from other areas of international law.80See, e.g., PrivatBank & Finance Co. Finilon, LLC v. Russian Federation, PCA Case No. 2015-21, Interim Award, ¶¶ 170-173 (Mar. 27, 2017) (evaluating the applicability of the “moving frontier” rule, and VCLT articles 15 and 29).X80  For example, the test used by the first set of tribunals—PrivatBank and Aeroport Belbek—was borrowed from the rules on state succession.81See PrivatBank, Interim Award, ¶¶ 174, 183-84.X81  However, commentators have heavily criticized what they view as the improper adoption and application of the rules of state succession.82See, e.g., Dumberry, supra note 4, at 513-16; Lorenzmeier, supra note 149, at 87-91; Papaefstratiou, supra note 78.X82  At its core, though, this criticism is fundamentally tied to the nature of international investment law: tribunals are formed on an ad hoc basis, and arbitrators are selected by the parties and the administrating institution.83See generally Andrew Willcocks, Rachel Chiu, & Kevin Cheung, Arbitral Tribunal, Jus Mundi (June 17, 2024).X83  Thus, to avoid incorrect application of applicable areas of international law, it is vitally important that both the investor-claimants and the respondent-states carefully select their arbitrators based on the potential arbitrator’s knowledge of the likely applicable areas of international law.84See Catherine A. Rogers & Fahira Brodlija, The Three Steps in Appointing Arbitrators, And Which One is Most Important, Kluwer Arb. Blog (Jan. 10, 2022).X84

Fifth, the Crimea cases raise issues related to the importance of grammar and translations.  As the Crimea cases demonstrate, arguments related to grammar and translations can be determinative.85See supra sections III(B).X85  For example, the debates over the meaning of the qualifier in article 1(4) of the Ukraine-Russia BIT illustrate the importance of analyzing an investment treaty’s exact sentence structure.86See supra section III(B)(iii); De Vriese, supra note 150, at 339-41.X86  Likewise, the debates over the difference in meaning between the Ukraine-Russia BIT’s official translations illustrate the importance of linguistics.87See, e.g., Hof Den Haag July 19, 2022, ECLI:NL:GHDHA:2022:1296 m.nt., ¶ 5.5.8 (Russian Federation/Aeroport Belbek) (Neth) (machine translated by Google).X87  These two issues may even combine if comma usage differs between the different translations of an investment treaty.88See G. Matteo Vaccaro-Incisa, Crimea Investment Disputes are jurisdictional hurdles being overcome too easily, EJIL: Talk! (May 9, 2018).X88   Thus, future investor-claimants and respondent-states would be wise to carefully analyze an investment treaty’s grammar and meaning in each of the treaty’s official languages in their submissions.

C. Consequences for the future

Beyond the Ukraine-Russia conflict, recent global events—such as Venezuela’s referendum regarding annexation of Guyana’s territory, Israeli calls to annex the West Bank, and Donald Trump’s rhetoric regarding annexation of countries such as Greenland and Canada—suggest that questions of occupation and annexation will likely be posed to future investment tribunals.89See, e.g., Venezuela claims large support for annexing oil-rich Guyana territory, Al Jazeera (Dec. 4, 2023), https://www.aljazeera.com/news/2023/12/4/venezuela-approves-referendum-on-oil-rich-guyana-territory; Dana Karni et al., Eyeing Trump support, Israeli minister pushes for West Bank settlement annexation, CNN (Nov. 12, 2024), https://www.cnn.com/2024/11/11/middleeast/israeli-minister-annexation-occupied-west-bank-intl/index.html; Miranda Bryant, Why is Donald Trump talking about annexing Greenland?, The Guardian (Jan. 8, 2025), https://www.theguardian.com/world/2025/jan/08/why-is-donald-trump-talking-about-annexing-greenland; Mike Blanchfield, Trudeau to Trump on annexation plans: ‘Not a snowball’s chance in hell’, Politico (Jan. 7, 2025), https://www.politico.com/news/2025/01/07/trudeau-trump-canada-annexation-plans-response-00196914.X89  For those potential disputes, the Crimea cases have created a roadmap for analyzing the definition of territory in the respective investment treaties, thus opening the door to a broader understanding of “territory” in treaties whose wording, travaux préparatoires, and party intent support such an interpretation.

As noted above, some international legal scholars have complained that the Crimea decisions violate the understanding of “territory” under international law, specifically that “territory” is understood as “sovereign territory.”90See, e.g., Dumberry, supra note 4.X90  However, international law is not set in stone; it evolves alongside developments in the four foundational sources of international law enshrined in the Statute of the International Court of Justice (ICJ):  international conventions, international custom, general principles of law, and—subsidiarily—judicial decisions and the teachings of highly qualified publicists.91Statute of the International Court of Justice art. 38(1), 33 U.N.T.S. 993 (1946).X91  Accordingly, the body of case law resulting from the Crimea cases, and related scholarly commentary, will be highly informative in future disputes involving occupied or annexed territory.92See generally Christopher Greenwood, Sources of International Law: An Introduction, legal.un.org/avl/pdf/ls/greenwood_outline.pdf (last visited Jan. 15, 2025).X92  Moreover, as the number of international investment tribunals adopting the broader definition of “territory” increases, international investment law itself evolves to endorse this broader understanding of “territory” over the prior understanding.

Furthermore, a broader interpretation of “territory” is in line with the reasoning of other international courts and tribunals.  For example, in the Namibia advisory opinion, the ICJ opined that “[p]hysical control of a territory, and not sovereignty or legitimacy or title, is the basis of State liability for acts affecting other States.”93Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276, Advisory Opinion, 1971 I.C.J. 16, ¶ 118 (June 21, 1971).X93  Likewise, in Certain German Interests, Poland was held liable for expropriating German-owned property located in territory that was originally German and later became Polish;94Certain German Interests in Polish Upper Silesia (Ger. v. Pol.), Merits, 1926 P.C.I.J. (ser. A) No. 781-82.X94 in the Ethiopia-Eritrea Claims Commission, Ethiopia was held responsible for expropriating the assets of Eritrean citizens who were formerly Ethiopian citizens before the state removed their citizenship;95Civilian Claims – Eritrea’s Claims 15, 16, 23 & 27-32 (Eth. v Eri.), Partial Award, 26 R.I.A.A. 195246-47 (Eritrea– Ethiopia Claims Commission 2004).X95 and in Sanum v. Laos, the tribunal found that protections under the 1993 China-Laos BIT extended to Macao—a former Portuguese territory that was incorporated into China in 1999—under the customary international law rules of state succession.96Sanum Invs. Ltd. v. Lao People’s Democratic Republic, PCA Case No. 2013-13, Award on Jurisdiction, ¶ 370 (Dec. 13, 2013).X96  These cases were also referenced by claimant-investors in their court submissions, and some Crimea tribunals accepted their conclusions as analogous to the situations at hand.97See, e.g., Naftogaz v. Russian Federation, PCA Case No. 2017-16, Partial Award, ¶¶ 154-55, 210 (Feb. 22, 2019); Oschadbank v. Russian Federation, PCA Case No. 2016-14, Award, ¶¶ 111, 116 fn. 113, 186 fn. 277 (Nov. 26, 2018); Stabil v. Russian Federation, PCA Case No. 2015-35, Award on Jurisdiction, ¶¶ 110, 155-59 (June 26, 2017); Hepburn, supra note 14 (describing the unpublished Everest Estate award); PrivatBank & Finance Co. Finilon, LLC v. Russian Federation, PCA Case No. 2015-21, Interim Award, ¶ 136 (Mar. 27, 2017).X97   Thus, in effect, these cases may be acting in concert with the Crimea cases to progressively develop international investment law, which will likely have significant consequences in future international investment disputes.  For the cases directly related to Ukraine, such as those mentioned above, this likely will spell the difference between success and failure.

Moreover, these cases are part of Ukraine’s “lawfare” strategy to fight Russia outside of the battle field.98About Lawfare Project: History, supra note 3.X98  So far, the decisions have led to significant awards against Russia—including US $5 billion in Naftogaz, US $1.1 billion in Oschadbank, and US $267 million in DTEK—which are currently the subject of enforcement proceedings.99See Fisher, supra note 145.X99  These landmark rulings could change the future interaction between international investment law and the international rules for situations of occupation and annexation, with Ukraine’s lawfare strategy serving as a roadmap for future occupied states in inter-state armed conflicts.100See Goldenziel, supra note 3, at 5-14.X100  Accordingly, international investment law may be used as a “backdoor mechanism” for war reparations, and to compound financial and economic pressure on a belligerent state to cease its violations of international law.101See Miles, supra note 11, at 143-50; Lorenzmeier, supra note 149, at 359; Tzeng, supra note 156.  But see Dumberry, supra note 4 (arguing that, to guard the international legal order, arbitral tribunals should not recognize illegal annexation of territory because the “interests of the international community as a whole should supersede those of a few foreign investors”) Cf. Dumberry, supra note 3 (explaining the logic used by other arbitral tribunals that have addressed disputes over investments in situations of state succession); Jill Goldenziel, Ukraine is Weaponizing Corporations Against Russia—Using Lawfare, Forbes (Apr. 14, 2022), https://www.forbes.com/sites/jillgoldenziel/2022/02/20/ukraine-weaponizes-corporations-to-surround-russia-using-lawfare (explaining Ukraine’s lawfare efforts, which are “designed to use law to achieve military objectives and delegitimize adversary actions”).X101

By evaluating the Crimea tribunals’ analyses regarding jurisdiction ratione loci, this article has attempted to clarify the tribunals’ reasoning and the potential effects of the Crimea cases on the future of both investment law and the international rules for situations of occupation and annexation.  Each of the Crimea tribunals reached their final decisions based on intensive and elaborate analyses of the term “territory” using the principles of treaty interpretation.  Unfortunately, however, the sui generis nature of the factual circumstances means no general conclusion can be reached regarding a new, expansive definition of “territory” for the purposes of jurisdiction ratione loci in international investment law.1See supra note 72 and accompanying text.X1  Nevertheless, the Crimea cases have significantly impacted international investment law—and the international rules for situations of occupation and annexation—by providing a roadmap for analyzing “territory” in situations of occupation or annexation, and demonstrating that effective control could be sufficient to establish “territory” for the purposes of investment treaties.