Investor Presentaiton
16
INVESTOR-STATE DISPUTE SETTLEMENT: A SEQUEL
(and more traditional) approach, exemplified by most bilateral
investment treaties (BITS) concluded by European countries. It
allows for a broad range of ISDS claims and contains few
procedural specifications, leaving virtually all procedural
aspects to be determined by the selected rules of arbitration or
by the arbitrators, in exercise of their discretion. The second,
more recent, approach features a more circumscribed scope for
ISDS claims and more detailed procedural rules with a view to
setting out clear conditions of investors' access to ISDS and in
the interests of a more effective, predictable, legitimate and
cost-effective process. Under this approach, a number of new
elements are addressed by the treaty itself, as opposed to being
left to "outside" arbitration rules or to interpretation by the
arbitral tribunal.
States can choose how to combine specific elements in
order to craft an ISDS regime tailored to their interests. Some
elements are indispensable to the crafting of an operational
ISDS provision (consent to arbitration, scope of the ISDS
clause, available arbitration forums). Other issues are
complementary and will depend on the specific policies and
concerns of the States negotiating the IIA. Some States may
choose to limit 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.
A far-reaching version of this approach would be to abandon
ISDS as a means of dispute resolution altogether, as some
countries have done. Other States may be content with the
status quo.
Section 6 of UNCTAD's Investment Policy Framework for
Sustainable Development (IPFSD), as well as section III of
UNCTAD Series on International Investment Agreements IIView entire presentation