Investor Presentaiton
26
INVESTOR-STATE DISPUTE SETTLEMENT: A SEQUEL
disincentives for public-interest regulation, posing obstacles to
countries' sustainable economic development.
In addition, even though the transparency of the system has
improved since the early 2000s, 14 ISDS proceedings can still be kept
fully confidential if both disputing parties so wish even in
cases where the dispute involves matters of public interest. 15
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Further concerns relate to so-called "nationality planning",
whereby investors structure their investments through intermediary
countries with the sole purpose of benefitting from IIAS, including
their ISDS mechanism.
Arbitral decisions: problems of consistency and erroneous
decisions. Those arbitral decisions that have entered into the public
domain have exposed recurring episodes of inconsistent findings.
These have included divergent legal interpretations of identical or
similar treaty provisions as well as differences in the assessment of
the merits of cases involving the same facts. Some legal standards,
14
See for example, the 2006 amendments to the ICSID Arbitration Rules
and the 2013 rules on transparency in ISDS proceedings adopted by
UNCITRAL. In the case of UNCITRAL, the new rules have a limited
effect in that they are designed to apply not to all future arbitrations but
only to arbitrations under future IIAS. At the same time, UNCITRAL
instructed the relevant working group to consider the possibility of an
international convention that would extend the new UNCITRAL
transparency rules to ISDS proceedings under existing IIAS - in respect of
those States who join the convention.
15 This applies to cases brought under arbitration rules other than ICSID
(only ICSID keeps a public registry of arbitrations) and that do not involve
Canada or the United States, each of which makes publicly available
detailed information about all cases brought against it. It is indicative that
of the 85 cases under the UNCITRAL Arbitration Rules administered by
the Permanent Court of Arbitration (PCA), only 18 were public (as of end
2012). Source: the Permanent Court of Arbitration International Bureau.
See further UNCTAD, 2012c.
UNCTAD Series on International Investment Agreements IIView entire presentation