Investor Presentaiton
38
INVESTOR-STATE DISPUTE SETTLEMENT: A SEQUEL
the ISDS provisions. There are also broader provisions that set forth
the scope of the treaty as a whole. These provisions work together to
demarcate the disputes a tribunal has the authority to hear.
In recent IIAs, States have been asserting a greater degree of
control over the disputes that can be brought against them
thereby enhancing predictability by adding and tailoring
provisions that delimit the scope of the agreement and of the ISDS
mechanism.
This chapter groups relevant issues into the following sections:
1. Core provisions determining the scope of ISDS;
2. Additional provisions that limit the scope of ISDS; and
3. Provisions determining the scope of the treaty.
1. Core provisions determining the scope of ISDS
States have taken a variety of approaches to delineating the
types of disputes that will be subject to ISDS. These range from
very broad language submitting "all disputes" to arbitration to a
much narrower category.
(i) All disputes
Some IIAS extend ISDS to all kinds of disputes arising between
an investor and the host contracting party. For example, Article 139
of the China-Peru Free Trade Agreement (FTA) (2009) enables an
arbitral tribunal to hear "[a]ny dispute between an investor of one
Party and the other Party in connection with an investment in the
territory of the other Party" (emphasis added). This approach is
very common, notwithstanding some differences in detail. For
instance, IIAs may provide that the ISDS procedures apply to
disputes "arising out" of an investment, "with respect to" an
investment, "concerning" an investment or "related to" an
investment. All of these formulations may be sufficiently broad to
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