Anti-competitive Investor Behaviour and Illegal Investments in Investment Treaty Arbitration

Abstract

Anti-competitive behaviour on the part of investors can lead to breaches of the host state legal order and cause market distortions. This chapter discusses the legal consequences of such behaviour within the framework of investment treaty arbitration and aims to show that anti-competitive strategies may lead to breaches not only of competition law, but also of a variety of host state national laws and regulations. It consequently proposes the adoption of a functional definition of anti-competitive actions that taint investments with illegality and explores the ways in which such investments may be excluded from the protection offered by bilateral investment treaties (BITs). The study of recent case law tends to show that investors are likely to face the consequences of their anti-competitive conduct in investment treaty arbitration. Two main hypotheses are explored: first, the issue of illegality when the BIT in question contains a specific legality requirement, and second, the possibility for states to rely on international law when challenging investors’ anti-competitive behaviour.