Investor Presentaiton
18
INVESTOR-STATE DISPUTE SETTLEMENT: A SEQUEL
INTRODUCTION
1
Since the conclusion of the first bilateral investment treaty (BIT)
in 1959, the number of agreements designed to regulate a host of
issues related to foreign investment has risen to nearly 3,200 by the
end of 2012. In addition to setting forth substantive obligations
undertaken by the State parties, the vast majority of BITs, as well as
other international investment agreements (IIAs), contain
provisions for the settlement of disputes between investors and the
host State through international arbitration. These dispute settlement
provisions accompany traditional State-State dispute settlement
mechanisms, also commonly included in IIAS. Notwithstanding
increasing criticism of investor-State dispute settlement (ISDS),² the
great majority of treaties continue to permit investors to bring direct
international claims against host States.³
1 "Other IIAS" (i.e. non-BIT IIAs) usually belong to one of the three
different types. The first type consists of agreements that have investment
chapters which include substantive obligations similar to those commonly
found in BITS (e.g., free trade agreements, economic cooperation
agreements and others). The second type consists of agreements with
limited investment-related provisions, which usually focus on granting
market access to foreign investors more than on the protection of
investments after they are established. The third type only deals with
investment cooperation, which may involve, for example, investment
promotion activities, or record an intention to negotiate substantive
commitments on investments in the future. Only "other IIAS" of the first
type commonly include investor-State dispute settlement provisions.
2 See, e.g., Waibel et al., 2010; Eberhardt and Olivet, 2012; UNCTAD,
2013b, pp. 111-112.
3 According to an OECD study that examined 1,660 BITS, only 6.5 per cent
of them do not provide for investor-State arbitration. (OECD, 2012, p.11).
Recent examples of IIAs without ISDS provisions are the Australia-United
UNCTAD Series on International Investment Agreements IIView entire presentation