The ISDS Clause in the Investment Law of the Kyrgyz Republic is Set for an Overhaul*

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AuthorsNatalia Alenkina** and Hannepes Taychayev

National Legislation
Investment Disputes


The government of the Kyrgyz Republic is determined to amend the Law on Investments of the Kyrgyz Republic (“Kyrgyz Investments Law”). The primary reason for this is to limit direct access of foreign investors to international arbitration. According to state officials, the existing investment framework is susceptible to partisan use and can be exploited in bad faith by investors as an opportunity to make money on their failing business projects.[1] Amendments to the law are necessary because the Kyrgyz Republic has not managed to successfully challenge the jurisdiction of any international arbitral tribunals.[2] Nor has the country won a single case against foreign investors in international arbitration.[3] This has imposed a considerable burden on the budget of the country. According to some estimates, the total amount of investment claims brought against Kyrgyzstan is estimated to be between $800 million to $1 billion.[4] To put this amount into perspective, the GDP of Kyrgyzstan in 2018 was $8.093 billion.[5] This is a burdensome amount of money for the budget of a country like the Kyrgyz Republic to shoulder.

There are several alternative law reform projects under consideration to be introduced to the Parliament of Kyrgyzstan. Some of them were lobbied for by the business community,[6] government institutions,[7] and parliamentary deputies.[8] All of them aim at redrafting the dispute settlement clause in the Kyrgyz Investments Law. They differ in their approach to the issue. While some proposals favor a liberal approach that provides for unhindered access to arbitration for both local and foreign investors, others favor a more restrictive approach to any sort of alternative dispute resolution mechanisms to the Kyrgyz judicial system.

The purpose of this piece is to examine the merits of the amendments proposed by the Ministry of Economy in 2018 that were sponsored by governmental bodies.


In a bid to limit direct access by foreign investors to international arbitration and counter the liberal proposal of the business community, the Ministry of Economy came up with a draft of the ISDS clause amendment for the Kyrgyz Investments Law. The proposed amendments to Article 18 thereof read:

  1. Investment disputes shall be resolved in accordance with previously agreed procedures between the investor and State bodies of the Kyrgyz Republic.
  2. In the absence of such agreement, investment disputes shall be resolved through consultations between the sides by addressing the matter to the authorized person on the protection of rights of business entities (Business Ombudsman) for a period of six months from the date of the first written request for consultations.
  3. If the investment dispute cannot be settled amicably in accordance with the provisions of paragraph (1) and (2) of this Article, the dispute shall be settled through the judiciary of the Kyrgyz Republic within six months.
  4. If the investment dispute cannot be settled in accordance with the provisions of paragraph (1), (2) and (3) of this Article, the dispute shall be settled in accordance with international treaties of the Kyrgyz Republic or through international arbitration based on the agreement of the parties.
  5. Any investment dispute between a foreign and a domestic investor shall be settled through the judiciary of the Kyrgyz Republic, unless the parties agree on any other procedure for resolving the dispute.[9]

It is important to put these amendments to test in light of the existing international law standards and commitments of the Kyrgyz Republic to the extent that this new iteration will meet the expectations of the government.


An overview of the draft suggests that there are a number of challenges associated with it. The major challenges are discussed below.

Paragraph three of the proposal suggests that disputes between an investor and the state shall be settled through judiciary of the Kyrgyz Republic. This is not a promising idea because the government itself implicitly recognized the deficiencies of the judiciary.[10]

Corruption is one of the primary challenges. It has virtually penetrated into all fields of state activity and has become the major impediment for development. It is safe to assume that the judicial system is similarly flawed.[11] The government itself doubts the effectiveness of the judiciary given rampant corruption in state institutions.[12] The government’s plan laid down in “Strategy on Sustainable Development of the Kyrgyz Republic 2018 – 2040,” is illustrative of the matter. The government plans to institutionalize arbitration as a mechanism for improving access to justice. Arbitration is intended not only to improve access to justice but also to ease the load on the judicial system. The plan is to keep the judicial system working on criminal cases only while delivering all civil disputes to commercial arbitration tribunals and arbitration courts. From this perspective, it does not make much sense to subject investment disputes to local courts.

Besides corruption there are other issues associated with the judicial branch. Several survey results indicate that there is a great degree of dissatisfaction with the administration of justice by the local courts.[13] For one thing, the local courts favour the state in their dispute settlement endeavours. For example, between 2010 and 2018 the win-loss rate for taxpayers shifted from 54-46% to 2-98% in favour of the state.[14] The influence of the Executive branch over the judiciary is one of the reasons for this.[15] Another one is that, as a state body, the judiciary tends to protect the national interest” of the Kyrgyz Republic. In light of the foregoing, it is safe to conclude that the judiciary suffers from a very strong institutional bias.

Further, it stands to reason that the judiciary will have to stretch itself beyond its means to manage to solve an investment dispute in six months. According to analysis conducted by the USAID, only 42 percent of commercial cases are resolved within the statutory time limit of 35 days.[16] Even if it manages to solve the disputes within the established timeframe and protect the ‘national interest’, it will stop the government blocking the case from being processed in an international forum. Under international law there is a well-established principle that holds that states cannot deny international responsibility by relying on its domestic law.[17] The same principle is reflected in art. 27 of the Vienna Convention on law of the Treaties.[18] This means that for the government of Kyrgyzstan to achieve its goals, amending the ISDS clause in the domestic law alone is not enough. To limit the access of international investors to international arbitration, the government needs to amend its ISDS clauses in its BITs and relevant multilateral treaties. Otherwise, they will not able to plausibly argue that investors cannot go to international arbitration by relying on the ISDS clause in its internal law where there is an international obligation. Having said that, it is important to examine the international treaty obligations of the Kyrgyz Republic.


A. ISDS clauses in multilateral and bilateral international treaties of the Kyrgyz Republic

Kyrgyzstan has ratified the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the “ICSID Convention”) in 1997.[19] The Convention was ratified by the Law of KR No. 47 of July 5 1997.[20]However, Kyrgyzstan has not deposited the instrument with the depository meaning. It has not fulfilled all necessary requirements for the Convention to be binding. As of today, the possibility of subjecting investment disputes to the ICSID exists through the ICSID Additional Facility Rules.[21] It was originally signed in 1979 and allows for a possibility of subjecting cases to the ICSID if the Convention has a binding force over at least one of the parties in dispute.[22]

There were several cases involving Kyrgyzstan under ICSID. In Sistem Mühendislik Inaat Sanayi ve Ticaret A. v. Kyrgyz Republic,[23] the Tribunal ordered Kyrgyzstan to pay$8.5 million to the plaintiff. It was also ordered to pay $647,410 in compensation for legal expenses to the plaintiff.[24]

Another important multilateral treaty is the UN Convention on Recognition and Enforcement of Foreign Arbitral Awards of 1958.[25] The Convention is used to enforce arbitral awards rendered in favor or against a State on the territory of another State where enforcement is sought. The Kyrgyz Republic joined the Convention by the decree З № 79-1 of Jogorku Kenesh on May 17, 1995 and СНПП № 62-1 of Jogorku Kenesh on May 31, 1995 without any reservations on the subject matter of disputes or territorial application of the Convention. The Convention became binding upon Kyrgyzstan on March 18, 1997.

Kyrgyzstan has ratified the Energy Charter (ECH)[26] by the Law of Kyrgyz Republic No. 45 on July 26, 1996.[27] The ECH of December 17, 1994 is a sector specific treaty aimed at regulating investment disputes in the energy industry.

Kyrgyzstan had an investment dispute with Petrobard Ltd, which was subject to ECH.[28] The case was arbitrated in Stockholm, Sweden in accordance with rules of Stockholm Chamber of Commerce. The arbitral award, delivered on March 29, 2005, concluded that the denial of effective means of protection of rights is a violation of principles of equality and justice. The government of Kyrgyzstan was ordered to pay $1,130,900 in compensation to Petrobard Ltd.[29]

The CIS countries have a framework agreement that was concluded on March 28, 1997 regarding the protection of rights of investors.[30] It lays down legal foundations for further bilateral agreements on the subject matter. Article 11 of the Convention states:

Investment disputes within this convention shall be decided by courts or arbitration courts of state parties to a dispute, Economic Courts of the CIS countries and/or other international courts or international arbitration courts.[31]

On September 23, 2014 the Economic Court of CIS, in its decision, recognized that art. 11 of the Convention is of general character. This means that conditions, procedures and fora for investor – state dispute settlement need to be further qualified in the domestic law. The decision reads:

Investment disputes within this Convention of 28 of March, 1997 on the protection of rights of investors, in accordance with article 11 of this Convention can be subject to the jurisdiction of international arbitration courts, if the competence of the said courts (institutional or an ad hoc) had been predefined in domestic laws of states that are a party to a dispute, international agreement in which a state is a party to a dispute and/or competence had been predefined in an agreement between a state and an investor to a dispute.[32] 

The Agreement on Promotion and Reciprocal Protection of Investments in the Members of the Eurasian Economic Community (EAEU) of December 12, 2008 is the last but not least important treaty Kyrgyzstan has joined.[33] The agreement gains special importance in light of the fact that there is no BIT between Russian Federation and Kyrgyzstan. Neither has the Russian Federation joined any other agreement related to investments in the post-Soviet space. The EAEU frames the legal landscape for the two countries in the field of investment.[34]

B. ISDS Clauses in BITs

A public offer to arbitrate for foreign investors is not only contained in the Kyrgyz Investments Law 2003 but also in the BITs Kyrgyzstan has signed and ratified. When it comes to dispute resolution provisions contained in its BITs, Kyrgyzstan has certain inconsistencies. All 34 agreements provide for investor-State dispute settlement.[35] It is safe to say that arbitration is the primary mechanism for ISDS therein.[36] However, when it comes to alternatives to arbitration, scope of claims, limitations on the scope of ISDS, type of consent to arbitration, recourse to domestic courts requirement, settlement mechanism and relationship between dispute settlement fora, they vary from one treaty to another.

1. Alternatives to Arbitration

Out of the 34 BITs mapped, 11 provide for an alternative dispute resolution method to arbitration.[37] The rest provide for none. While none of the treaties explicitly mention mediation as an option to arbitration, formulations such as:investors may choose to submit the dispute for resolution in accordance with any applicable, previously agreed dispute-settlement procedures” provide for a possibility to use mediation as a tool for dispute settlement, provided that it has been agreed between the State and an investor.

2. Cooling-off periods

The treaties also provide for voluntary conciliation between the parties for the period of 6 months. Many BITs provide that the investor may initiate international arbitration only after a specified period of negotiations, conciliations or meditation procedure.[38] It has to be noted that there seems to be a bit of a quibbling over the semantics: whether these sorts of time periods are to be labeled cooling-off or waiting periods.[39] They serve same practical purpose of solving the conflict and avoiding the need for arbitration.

The rule is often seen as analogue of exhaustion of local remedies rule.[40] During the cooling-off/waiting period, parties to a dispute have to solve the dispute either through negotiations, conciliations or meditation procedure. Administrative or judicial remedies usually are not covered under this rubric.[41] In a number of cases, tribunals have had to elaborate whether such provisions constituted a bar to jurisdiction or were a mere procedural requirement that could be dismissed.[42] ICSID tribunals have not been consistent with regard to the legal identity of the requirement. Some tribunals, both ICSID and other tribunals in investment related cases, held that it was a mere procedural requirement and it could be overlooked for the benefit of other considerations such as the impossibility of reaching a settlement within established timeframe, futility of negotiations between the parties or for the sake of a procedural economy.[43] And yet, the Court in Enron v. Argentina, in an obiter dictum, said that: “Such requirement [cooling-off/waiting period] is in the view of the Tribunal very much a jurisdictional one. A failure to comply with that requirement would result in a determination of lack of jurisdiction.”[44] In Murphy Exploration and Production Company International v. Republic of Ecuador, the Tribunal found that the requirement that the parties should seek to resolve their dispute through consultation and negotiation for a six-month period a fundamental requirement that the Claimant had to comply with in order to request arbitration under the ICSID rules.[45]

On the other hand, there are cases where tribunals held that non-compliance with the waiting period could constitute a bar to part of the claim.[46] It should be noted though that the rather inconsistent approach of the tribunals to the subject matter could be justified either by the wording of the provision in the relevant legal instrument of the circumstances and the factual matrix of a particular case.

3. Fork-in-the-road

There are 5 treaties that provide for a fork-in-the-road provision. The vast majority of the ISDS clauses do not discuss the relationship between the fora. Fork-in-the-roadclauses require the investors to submit an investment dispute either to the domestic courts or the international forum of his choice. They are attached to the consent provisions of certain BITs.[47] Once the investor starts proceedings in the domestic forum, it deprives him of the right to resort to international arbitration. Whatever choice the investor makes it is final.[48] An important difference of the fork-in-the-road provision from an exhaustion of local remedies clause is that it is not a precondition for an investor to submit a claim to the international arbitration.[49] The provision wording might differ from one agreement to another. For this reason, it is not viable to postulate a single example as a universally representative. Despite differences in wording, all of them serve single practical purpose – “making irrevocable the choice of the investor who would have otherwise a generous choice of jurisdictions.”[50]

4. Local Remedies First

The BIT with India of 2019 provides for preliminary steps before a dispute can be submitted to international arbitration.[51] Namely, the clause requires a dispute to be submitted to local courts or administrative bodies.[52] This is in effect a requirement to exhaust local remedies first before a dispute can be submitted to international tribunal.

To what extent it makes sense to discuss the differentiation that the government of Kyrgyzstan makes between investors of one country and those of another is a big questionbecause the differentiation in ISDS procedures crafted in the BITs can be rendered ineffective through the operation of Most Favored Nation clauses and “import” more favorable dispute settlement clauses from one treaty to another.[53]

In effect, the proposed domestic law impediments to arbitration will be effective only in relations with investors where there is no BIT. The benefits contained in the BITs will not extend to them either through the operation of MFN[54] or of NT[55] since neither of these two norms are part of customary international law.


The overall picture emerging from this analysis is that the proposal of the government needs to be more comprehensive. The government of Kyrgyzstan will not be able to avoid responsibility under international law by introducing amendments to its domestic law. And considering the structural deficiencies of the legal framework in the country such as low levels of trust, corruption and lengthy judicial proceedings, arbitration is but one meaningful and effective way of access to justice for foreign investors.

An overview of the BITs and other international agreement dealing with investment matters of the Kyrgyz Republic suggests that the governmental approach to the matter is fragmented. To develop a coherent approach, the government needs to develop a model BIT.

The fix proposed to the perceived issues does not address the root causes of the problem, such as corruption and flawed state institutions. To borrow a word or two from Samuel Beckett, there is a man all over for the government of Kyrgyzstan, blaming on his boots the faults of his feet.

[1]  Interview with A. Abdyldayev, Head of the Investment Policy Division on New Amendments to the Investment Law (Jan. 27, 2020).

[2] Id.

[3] Interview by NTS with P.D Mamasheva A.T. (Feb. 11, 2020),

[4] Id.

[5] Kyrgyz Republic, The World Bank, (last visited May 30, 2020).

[6] The initial version of the law, which aimed at improving access to justice for both domestic and foreign investors via arbitration by expanding the definition of investment disputes, was lobbied for by the local business community through the Ministry of Economy in 2018. See Natalia Alenkina & Hannepes Taychayev, On our way to 2030: delivering for resilient and prosperous societies, Riga Graduate School of Law (forthcoming Feb. 2021).

[7] To impart its own vision of the law, the state bodies presented their own draft of the law to the Ministry of Economy in 2019. Id.

[8] In 2020, A Mamasheva, M.P., proposed her own version of the amendments to the law. See The Supreme Council, Kyrgyz Republic, Draft Law of the Kyrgyz Republic “On Amendments to the Law of the Kyrgyz Republic on Investments in the Kyrgyz Republic” will be submitted for Public Discussion on February 3, 2020 (2020),

[9] Author’s unofficial translation (emphasis added).

[10] Strategy on Sustainable Development of the Kyrgyz Republic 2018 – 2040, at 48-50,

[11] See Hannepes Taychayev and Natalia Alenkina, Arbitration in Kyrgyzstan: Evolution and Next Steps Ahead,Kluwer Arb. Blog (Feb. 22, 2019),

[12] Id.

[13] Kyrgyz Republic Judicial System Diagnostic: Measuring Progress and Identifying Needs, World Bank1-2 (June 8, 2011),

[14] IMF, Kyrgyz Republic: 2019 Article IV Consultation—Press Release and Staff Report19(July 2019).

[15] World Bank, supra note 12.

[16] Kyrgyz Republic Judicial System Diagnostic: Measuring Progress and Identifying Needs, World Bank, at x (June 8, 2011),

[17] United Nations, Rep. of Int’l Arbitral Awards (2006) Vol. VI,

[18] Vienna Convention on the Law of Treaties, art. 27, Jan. 27, 1980, 1155 U.N.T.S. 339.

[19] Convention on the Settlement of Investment Disputes between States and Nationals of Other States, Mar. 18, 1965, 17 U.S.T.S. 1270, 575 U.N.T.S. 159.

[20] Закон Кыргызской Республики от 5 июля 1996 года N 47 [The Law of the Kyrgyz Republic of July 5, 1997 No. 47.

[21] ICSID Additional Facility Rules.

[22] Natalia Alenkina & R. Khalitov, Legal Regulation of Investment Disputes in the Kyrgyz Republic: Review of Regulatory and Legal Framework, 1 AUCA Acad. Rev. 16,17-18 (2013).

[23] Sistem MühendislikInaat Sanayi ve Ticaret A. v. Kyrgyz Republic, ICSID Case No. ARB(AF)/06/1, Award, ¶ 208 (Sep. 9, 2009),

[24] See Nurbek Sabirov et al., Investment Sports: Causes, Consequences, Conclusions: Review No. 2: Arbitration Case – System of Engineering Against Kyrgyz Republic, Kalikova & Associates,

[25] Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Jun. 6, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 38.

[26] Energy Charter Treaty, Dec. 17, 1994, 2080 U.N.T.S. 95.

[27] Закон Кыргызской Республики от 26 июля 1996 годаN 45[The Law of Kyrgyz Republic of July 26, 1996 No. 48].

[28] Petrobart v. Kyrgyz Republic (II), Case No. 126/2003 (SCC).

[29] Petrobart v.Kyrgyz Republic (II), Case No. 126/2003, Arbitral Award, ¶479 (SCC 2005), See also Nurbek Sabirov et al., Investment Disputes: Causes, Consequences, Conclusions:Review No. 1: Arbitration Case – Petrobart Limited v. Kyrgyz Republic, available at

[30] Convention on the Protection of Investor Rights, Mar. 28, 1997, Kyrgyz Republic ratified the Convention by Законом КР от 3 марта 2000 года № 48 [The Law of Kyrgyz Republic of 3 March 2000 No. 48], It came into force on 11 July, 2000.

[31] Convention on the Protection of Investor Rights, art 11, March 28, 1997, See also Alenkina & Khalitov,  supra note 23.

[32] Economic Court of CIS decision on Interpretation of art. 11 of the Convention on protection of Investors’ Rights of 28 of March 1997. Economic Court of CIS, Case No. 01-1/1-24, (Sept. 23, 2014), available at

[33] Agreement on Promotion and Reciprocal Protection of Investments in the Memer States of the Eurasian Economic Community, Dec. 12, 2008, available at

[34] See W. A. Yegizarov, Investment Laws of State-parties to EAEU, 11 Law and Econ., available at

[35] AUCA students performed the initial mapping of the BITs: Akyl Almazbekov, Bagayim Seytbekova.

[36] Alenkina & Taychayev, supra note 7.

[37] E.g., Treaty Between United States of America and the Republic of Kyrgyzstan Concerning the Encourage and Reciprocal Protection of Investment art.6(2)(b), Jan. 19, 1993, available at; Agreement between the Government of the Republic of Kyrgyzstan and the Government of Ukraine on the promotion and mutual protection of investments art. 7, Feb. 23, 1993, available at

[38] E.g., Agreement Between the Czech and Slovak Federal Republic and the Swiss Confederation on the Promotion and Reciprocal Protection of Investments art.9, Oct. 5, 1990, available at See also Claudia Ludwig, Negotiation Clauses in BITs – Empty Words?, Kluwer Arb. Blog (May24, 2011),

[39] See Martin Dietrich Brauch, Exhaustion of Local Remedies in International Investment Law, IISD Best Practice Series 2,; Christoph Schreuer, Travelling the BIT Route of Waiting Periods, Umbrella Clauses and Forks in the Road,5 J. World Inv.& Trade 231, 238(2004).

[40] Ethyl Corp. v. Can., Award on Jurisdiction, ¶ 84 (NAFTA/UNCITRAL 1998),

[41] Brauch, supra note 28, at 2.

[42] See Brauch, supra note 28, at 17-18.

[43] See e.g., Ethyl Corp., ¶ 84 and Ronald S. Lauder v. Czech Republic, Final Award ¶ 184 (UNCITRAL 2001),

[44] Enron Corp. v. Arg. Republic, ICSID Case No. ARB/01/3, Decision on Jurisdiction, ¶ 88 (Jan. 14, 2004),

[45] Murphy Expl. And Prod. Co. Int’l v. Republic of Ecuador, ICSID Case No. ARB/08/4, Award on Jurisdiction, ¶ 149 (Dec. 15, 2010),

[46] Antoine Goetz v. République du Burundi, ICSID Case No. ARB/95/3, Award (Embodying the Parties’ Settlement Agreement), ¶¶ 90-93 (Feb. 10, 1999),; Schreuer, supra note 25, at 238.

[47] Christoph Schreuer et al., The ICSID Convention: A Commentary 365 (2d ed. 2009).

[48] Id.

[49] Id.

[50] Catherine Yannaca-Small, Improving the System of Investor-State Dispute Settlement: An Overview, OECD 105 (2006),

[51] Bilateral Investment Treaty, Kyrgyzstan-India,

[52] Brauch, supra note 28, at 2.

[53] For a detailed discussion, see Simon Batifort and J. Benton Heath, The New Debate on the Interpretation of MFN Clauses in Investment Treaties: Putting the Brakes on Multilateralization, AJIL (Feb 13, 2018).

[54] Campbell McLachlan, Is There an Evolving Customary International Law on Investment?, 31 ICSID Rev.257, 264 (2016).

[55] Hannepes Taychyev, Foreign Investment Protection Standard of National Treatment Becoming a Norm of Customary Int’l Law?, Berkeley J. Int’l L. Blog (Nov, 17, 2018),

* The present piece is builds on a research project on Access to Civil Justice in the Kyrgyz Republic completed by American University of Central Asia, Faculty of Law team led by Natalia Alenkina and Hannepes Taychayev.
** Natalia Alenkina holds a law degree and a Ph.D. on Theory of Law from the National Kyrgyz State University. She combines an academic career as Associate Professor of Law at the American University of Central Asia with legal practice at Satarov, Askarov & Partners Law Firm specializing in litigation and arbitration. Ms Alenkina has gained extensive consulting experience working with USAid, UNDP and EU-funded projects, especially as a member of legislative working groups preparing the Civil Code, the Civil Procedural Code and the Law on Mediation of the Kyrgyz Republic. As an arbitrator, Ms Alenkina is in the list of arbitrators in the international courts of arbitration of Kazakhstan and the Kyrgyz Republic. Since 2018 Ms Alenkina was elected as a court member at the ICC International Court of Arbitration (France) from Kyrgyzstan. Natalia Alenkina is a member of the Scientific Advisory Council of the Supreme Court of the Kyrgyz Republic as well.
† Hannepes holds an LL.B degree in Law from American University in Central Asia (AUCA), Bishkek, Kyrgyzstan; an LL.M in International Law from Korea University, Seoul, South Korea. He joined AUCA Faculty of Law as a lecturer in law in August of 2018. At the moment he is teaching classes on Public International Law, International Humanitarian Law, and Law and Economics. His research interests primarily are focused on public international law, international investment law and international arbitration law.