Investor Presentaiton
42
INVESTOR-STATE DISPUTE SETTLEMENT: A SEQUEL
(i) Exclusion of disputes in a particular sector or industry
There may be sensitive industries or sectors in relation to which
a State does not wish to forego the jurisdictional monopoly of its
national courts. Those sectors can be explicitly excluded from the
scope of ISDS. For example, Article 9(4) of the Turkey Model BIT
(2009) does that in relation to disputes concerning real estate:
"[T]he disputes, related to the property and real rights upon
the real estates [sic] are totally under the jurisdiction of the
Turkish courts and therefore shall not be submitted to
jurisdiction of the International Center for Settlement of
Investment Disputes (ICSID) or any other international
dispute settlement mechanism."
Some IIAS specify a limited number of provisions under which
investors in a particular sector or industry can make claims. For
instance, while the Canada-Jordan BIT (2009) does not totally
exclude financial institutions and investments therein from ISDS
claims, it greatly reduces the number of obligations that can serve as
a cause of action in this sector:
"Article 21
Limitation of Claims with Respect to Financial Institutions
With respect to:
(a) financial institution of a Party; and
(b) investors of a Party, and investments of such investors,
in financial institutions in the other Party's territory,
this Section [on ISDS] applies only in respect of claims that
the other Party has breached an obligation under Articles 13
["Expropriation"], 14 ["Transfers"], or 18 ["Denial of
Benefits"]." (Emphasis added).
UNCTAD Series on International Investment Agreements IIView entire presentation