Are investment treaties and ICSID arbitration only something to consider after problems have arisen?
Definitely not. It is important to consider investment treaties when concluding any major contract where you have concerns about the stability of the country concerned. The reason for this is that it is often possible to structure an investment to take advantage of greater investment protection. For example, if contracting in Indonesia, a contractor could gain additional protection if it used a Dutch subsidiary because Holland has a BIT with Indonesia. This is a complex area and contractors would be well advised to take specialist legal advice before commencing major projects in developing countries.
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