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Investor Presentaiton

172 INVESTOR-STATE DISPUTE SETTLEMENT: A SEQUEL below can be combined in different ways in order to craft an ISDS regime tailored to the interests of the contracting parties. Some of the options reviewed below allow limiting investor access to ISDS with a view to slowing down the proliferation of ISDS proceedings, reducing the risk of States' significant financial liabilities and saving resources. These goals can be achieved in numerous ways, including: (i) by reducing the subject-matter scope for ISDS claims; (ii) by restricting the range of investors who qualify for the benefits of the treaty, and (iii) by introducing the requirement to exhaust local remedies before resorting to international arbitration. A far-reaching version of this approach would be to abandon ISDS as a means of dispute resolution altogether, as some countries have done. It should be noted that qualifying and/or introducing limitations to ISDS provisions or entirely excluding them from an IIA can contribute to reducing the protective coverage of the treaty in question, and thereby undermine its quality as an investment promotion tool. 209 Introducing improvements and adjustments through individual treaties is relatively straightforward given that only two treaty parties (or several in case of a plurilateral treaty) need to agree. However, the approach is limited in effectiveness: unless the new treaty is a renegotiation of an old one, the modifications apply only to newly concluded IIAs while the large number of "old" agreements remains unaffected. Moreover, one of the key advantages of this approach, namely, that countries can chose whether and which issues to address, is also one of its key disadvantages, as it turns this option into a piecemeal approach that stops short of offering a comprehensive and integrated way forward. 209 Recent examples of IIAS without ISDS provisions are the Japan- Philippines Economic Partnership Agreement (2006), the Australia-United States FTA (2004) and the Australia-Malaysia FTA (2012). UNCTAD Series on International Investment Agreements II
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