Investor Presentaiton
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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.
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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 IIView entire presentation