Investor Presentaiton
174
INVESTOR-STATE DISPUTE SETTLEMENT: A SEQUEL
alleged breach of an obligation under the treaty
which causes loss or damage to the investor")
restricts the scope of ISDS to claims alleging
violations of the treaty itself.
A broad open-ended formulation (any dispute
"related to" or "in connection with" an
investment) also could bring other claims within
the ISDS ambit, e.g. alleged breaches by the State
of its own domestic law, an investment contract
or customary international law.
A median approach would specifically
identify potential causes of action (e.g., "disputes
alleging the breach of the treaty, of an investment
agreement or an investment authorization"; these
latter should also be defined in the treaty).
A treaty may use additional techniques to
delineate the scope of ISDS, for example:
Name the treaty obligations that can be
subject to ISDS (e.g. only disputes relating
to expropriation or compensation) or,
instead, name those obligations that are not
subject to ISDS (e.g., "pre-establishment"
obligations or transparency);
Exclude disputes in a particular economic
sector, industry or regulatory area (e.g. real
estate, financial services, national security,
government procurement);
Introduce a limitation period for claims
(e.g. three years).
UNCTAD Series on International Investment Agreements IIView entire presentation