Investor Presentaiton

185 Applicable substantive law morals or public health and safety. To do so effectively, an IIA may set out the procedures by which such amicus curiae briefs are to be submitted and administered in order to prevent them from obstructing the course of the arbitration. This may include criteria that the arbitral tribunal should consider when deciding whether a non-disputing party may file a submission and guidance as to the weight that such submission should have in the proceedings. In order to guide arbitrators in their decision making, it is desirable that IIAS specify the sources of law applicable to disputes under the IIA and the hierarchy among them. This designation must be considered in light of other relevant provisions of the treaty, including the scope-of-ISDS clause, which specifies the range of disputes that can be submitted to arbitration. Without such instruction, the law applicable to the dispute will be left to an arbitral tribunal's discretion. Addressing the potential tensions between different branches of international law is another challenge. An IIA could specifically state that in case of a conflict between the IIA and a host State's international commitments, such conflicts should be resolved in accordance with customary international law, including with reference to the Vienna Convention on the Law of Treaties. Such a provision would at least remove questions as to whether a tribunal established under the IIA has jurisdiction to consider other international commitments (beyond investment law). A more UNCTAD Series on International Investment Agreements II

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