Investor Presentaiton
21
investors direct access to international arbitration against host
States. This is, however, a key initial decision to make, and
contracting parties to a particular IIA should consider it carefully,
weighing the pros and cons. Should they decide to include an ISDS
mechanism in the treaty, this sequel can help to shape and tailor it in
ways that would meet their requirements and policy objectives.
The sequel aims to systematically analyse the components of
ISDS and to take stock of developments in the relevant IIA
provisions. Most IIAs have a similar structure, yet provisions in
different treaties often vary significantly. Those variations often
have a significant effect on issues such as the breadth of the host
State's consent to arbitration, venues where arbitration can be held,
remedies available to claimants and many others. This paper seeks
to explain the rationale for, and implications of, particular treaty
approaches to relevant ISDS issues. Many of these issues are legal
and technical in character; however, they may make a significant
difference in specific disputes. The sequel's analytical approach is
meant to inform future policy decisions so that the paper may serve
as a toolkit for IIA negotiators. In its closing section, the paper puts
this technical discussion into the broader context and outlines five
paths for the reform of the ISDS system."
This paper is structured as follows. Section I briefly sets out the
historical background of ISDS, and then identifies the salient
features of the system and the main criticisms of it. Section II
undertakes a review of treaty practice with respect to individual
ISDS issues, such as consent to arbitration, the scope of ISDS,
available dispute settlement forums, frivolous claims, applicable
substantive law, the role of States in the interpretative process,
remedies, and many others. It seeks to identify the rationales for,
8 Another useful tool is International Investment Agreements Negotiators
Handbook: APEC/UNCTAD Modules (APEC, 2013).
9 See also UNCTAD, 2013b, pp. 112-117.
UNCTAD Series on International Investment Agreements IIView entire presentation