Recommended Citation
Lena Raxter,
Seizing Responsibility: International Investment Law's Shifting Understanding of Jurisdiction in Occupied and Annexed Territory,
58 Case W. Res. J. Int'l L.
145
(2026)
Available at:
https://scholarlycommons.law.case.edu/jil/vol58/iss1/8
Abstract
Following Russia’s 2014 occupation and annexation of Crimea, Ukraine pursued the unusual strategy of encouraging its nationals to file investment claims against Russia under the 1998 bilateral investment treaty between Russia and Ukraine. The resulting “Crimea arbitrations” consistently upheld jurisdiction, reasoning that Russia’s effective control over Crimea resulted in the assumption of legal obligations in the region. Many scholars, however, contend that this conclusion was incorrect because the disputes were outside the respective tribunals’ jurisdiction. The resulting fragmentation begs the question: how can international investment law reconcile these competing positions?
In the interest of promoting stability and consistency in international investment law, this Article addresses the question: assuming the law was as the critics of the Crimea arbitrations assert, have the Crimea arbitrations formed a jurisprudence constante that establishes a special standard for jurisdiction in disputes involving occupied and annexed territory? It begins by contrasting the legal framework advanced by critics with the reasoning of the publicly available Crimea awards. Next, it demonstrates that jurisprudence constante exists in investor State arbitration and analyzes whether the Crimea arbitrations constitute such a jurisprudence constante. Having concluded that they do, the Article then identifies the content of the Crimea jurisprudence constante. Lastly, the Article highlights several future considerations arising from the Crimea arbitrations. In the interest of promoting stability and consistency in international investment law, this Article addresses the question: assuming the law was as the critics of the Crimea arbitrations assert, have the Crimea arbitrations formed a jurisprudence constante that establishes a special standard for jurisdiction in disputes involving occupied and annexed territory? It begins by contrasting the legal framework advanced by critics with the reasoning of the publicly available Crimea awards. Next, it demonstrates that jurisprudence constante exists in investor-State arbitration and analyzes whether the Crimea arbitrations constitute such a jurisprudence constante. Having concluded that they do, the Article then identifies the content of the Crimea jurisprudence constante. Lastly, the Article highlights several future considerations arising from the Crimea arbitrations.
Through this analysis, the article concludes that the Crimea jurisprudence constante establishes a special standard that allows investors from invaded-States to seek redress from the aggressor-State in future disputes involving occupied or annexed territory. (from author)