Investor Presentaiton
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INVESTOR-STATE DISPUTE SETTLEMENT: A SEQUEL
3. Provisions determining the scope of the treaty
The elements reviewed so far have been specific to the scope of
ISDS. In addition, the ISDS scope very much depends on the scope
of the treaty as a whole. The latter is composed of:
i) Subject-matter coverage of the treaty;
ii) Range of persons benefitting from the treaty;
iii) Geographical application of the treaty; and
iv) Temporal application of the treaty.
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Each of these topics is extremely important and has been
addressed in detail in other studies. This paper does not discuss the
numerous facets of each of these topics; instead, it only briefly
identifies the impact that they have on the scope of the treaty, and
thus on the scope of ISDS.
(i) Subject-matter of the treaty
Covered investments. An important aspect of establishing the
material scope of treaty coverage is determining what qualifies as an
"investment”. The treaty's definition of "investment" identifies the
range of transactions and assets to which the treaty applies, i.e.
towards which the host State has undertaken obligations. Most BITS
have very broad and open-ended definitions of "investment", which
has prompted tribunals to take an expansive approach towards the
kinds of transactions and assets that qualify as investments. Other
IIAS have defined "investment” more carefully, creating a closed list
of covered assets, and furthermore specifically excluding particular
assets such as: claims arising from purely commercial contracts;
trade finance operations; short-term loans; public debt securities;
bonds of, and loans to, state enterprises; and portfolio investment. In
addition, many treaties require that investments be made in
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See further UNCTAD, 2011d; UNCTAD, 2007b, pp. 4–21; UNCTAD,
2012a, pp. 48-49.
UNCTAD Series on International Investment Agreements IIView entire presentation