International Arbitration Trends in 2026
Investor-state arbitration faces a rapidly changing landscape as governments take a firmer hand in sectors viewed as critical to national interests and the energy transition. States are tightening controls over strategic investments, invoking national security and adopting policies to secure domestic access to vital resources. The mining sector, in particular, is under the spotlight, with growing demand for minerals like lithium and cobalt matched by new restrictions on foreign investment and increased state intervention. In parallel, disputes are moving beyond arbitration to national courts, from anti-arbitration injunctions to enforcement battles and EU sanctions.
In this context, investors must adopt flexible, coordinated strategies to navigate a playing field that is more dynamic and complex than ever.
In detail
National security and investment claims
With intensified geopolitical tensions, governments have stepped up measures to monitor and, where needed, restrict or unwind foreign investments on security grounds. In 2025, eight G20 members adopted legislation designed to address potential security threats linked to foreign investments.
These measures often result in restricting, prohibiting, or compelling the divestment of foreign investments. Recent examples include Sweden’s measures preventing Huawei from participating in the roll-out of 5G networks and requiring the removal of existing Huawei equipment.
Investor-state arbitration becomes key in this context. More than ever before, arbitral tribunals are likely to be called upon to assess the compliance of national security measures with investment protection treaties. New investment treaties increasingly incorporate “self‑judging” essential security interest exceptions to protection, which attempt to limit arbitral tribunals’ scrutiny over state measures affecting foreign investments. Even in the absence of such exceptions, the debate continues over whether national security restrictions are compensable or legitimate and non-actionable under the “police powers” doctrine.
In the next few years, we expect the national security lens to keep widening. Investors should increasingly anticipate state intervention early in a deal, and arbitrators will face greater pressure to weigh national policy concerns alongside treaty protections.
Noah Rubins KC
Partner
Mining remained the largest source of investor state dispute settlements (ISDS) claims for the tenth consecutive year in 2025, with nearly 30% of newly registered cases arising out of mining disputes.
This trend is expected to continue, driven by surging demand for key critical minerals to support the energy transition. By 2040, demand for these materials is projected to be about six times higher for lithium, four times higher for graphite and twice as high for cobalt compared to.
As these minerals grow more vital to national interests, resource-rich nations are increasingly implementing policies, such as prioritizing local supply chains, imposing export restrictions, or asserting greater state control over mining operations. For example, Indonesia has banned the export of unprocessed nickel, requiring foreign investors to refine minerals locally. Mexico has nationalized its lithium sector, granting exclusive control to a state enterprise, while Zimbabwe has banned raw lithium exports to build up domestic processing. These measures, along with China's export controls on gallium, germanium and graphite, aim to safeguard national interests and increasingly tie access to minerals to geopolitical considerations. This intense competition for resources is driving a new wave of government intervention, through policy shifts, investment restrictions and export controls, that brings additional complexity and risk for foreign investors.
Such developments are likely to fuel more disputes. The accelerating demand for critical minerals is unfolding in parallel with the broadening scope of ESG regulation, creating increasing points of regulatory friction. Governmental measures are evolving beyond a focus on environmental concerns to place a greater emphasis on social issues, such as inadequate community consultation, infringements of indigenous rights and deficiencies in social impact assessments. Allegations of this kind featured prominently in Bear Creek v. Peru, South American Silver v. Bolivia, Cortec Mining v. Kenya, and, most recently, Gabriel Resources v. Romania. Disputes are also arising with growing frequency from measures adopted by the judiciary.
Mining investors are therefore well advised to strengthen their due diligence practices – at the outset and throughout the entire life of their investments – to ensure full compliance with applicable social standards. Investors should also monitor domestic legal proceedings related to these issues from the outset and approach them not only from a domestic law perspective but also with future ISDS strategies in mind. This will improve their legal positions, should an investment dispute arise.
We’re seeing more investment disputes focus on community engagement. Investors need to be prepared to provide evidence related to their compliance with applicable social policies and standards in potential investment cases.
Noiana Marigo
Partner Global – Co-Head of International Arbitration
Practical takeaways
To succeed in this shifting environment, investors should:
- Create a comprehensive dispute strategy: Coordinate international and national actions from the outset to avoid inconsistent arguments and strengthen your overall position.
- Assess the impact of national court decisions: While these actions often do not have immediate impact on the investor-state arbitration itself, they can create additional risks, such as director liability, enforcement challenges, clawback actions, etc.
- Leverage procedural tools: Consider requesting interim measures from arbitral tribunals to block domestic proceedings and keep arbitrations on track.
- Elevate your due diligence and compliance: Ensure social and environmental risks are managed effectively throughout the investment lifecycle.
Our global international arbitration team has been representing clients in disputes raising these legal issues. Please contact us if you would like to learn more.
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