Investor Presentaiton
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unilaterally terminate an IIA, its consent to investor-State arbitration
will not usually terminate at the same time.
A different issue is raised by a State's decision to withdraw
from the ICSID Convention. In fact, recent withdrawals by three
States (the Plurinational State of Bolivia, Ecuador and the
Bolivarian Republic of Venezuela) from ICSID have given rise to
the question of whether these States remain bound by the
Convention only in relation to disputes initiated before their
withdrawal became effective, or also in relation to future disputes as
long as the State's consent to ICSID arbitration remains in the
country's IIAS. The former is clear: so long as consent to the
arbitration was perfected before the withdrawal became effective, an
ICSID tribunal would have jurisdiction. The latter is more
controversial. Interpreting the IIAs' offer to arbitrate under the
ICSID Convention as irrevocable for purposes of claims brought
under that IIA would effectively mean that for a State to prevent
future ICSID claims, it must not only terminate the ICSID
Convention but also terminate all of its IIAs that contain an ICSID
arbitration option. To date, this question has not been addressed by
an arbitral tribunal. Even though there are good reasons to believe
that after withdrawing from ICSID new arbitration claims cannot be
initiated against the withdrawing State in that forum, there is still
some uncertainty in this respect.
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B. Scope of ISDS
A State's offer to arbitrate found in an investment treaty has
certain limits. IIAs vary as to the types of disputes that States have
agreed to submit to arbitration. The scope of ISDS is determined in
different places in the agreement and may take various forms. For
example, there are provisions that specifically delineate the scope of
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For a full discussion of this issue, see UNCTAD, 2010b.
UNCTAD Series on International Investment Agreements IIView entire presentation