Investor Presentaiton
17
this Sequel, offers a number of options for States to choose
from in this regard. It should be noted that qualifying and/or
introducing limitations to ISDS provisions or entirely
excluding them from an IIA can contribute to reducing the
protective coverage of the treaty in question, and thereby,
undermine its quality as an investment promotion tool.
Going beyond the design of ISDS in individual IIAS, and
in light of the concerns that the current system is seen by many
as lacking legitimacy and effectiveness, policy makers may
wish to explore various avenues to achieve medium- and
longer-term goals. Ideas such as the introduction of an appeals
facility or the creation of a standing international investment
court merit particular consideration and can be explored
further. In addition, following the conventional wisdom that
the best way to resolve a dispute is to avoid it altogether or
resolve it at an early stage, an increased resort to methods of
alternative dispute resolution (ADR) and dispute prevention
policies (DPPs) may be beneficial. These ideas are also
explored in UNCTAD's World Investment Report 2013 which
sets out "Five Paths of Reform" for ISDS.
In closing, it should be reiterated that the ISDS mechanism
serves as an enforcement tool for the substantive commitments
States undertake in their IIAS. It is, therefore, critically
important to thoroughly assess and clarify the key concepts
and provisions in IIAS, to carefully define the scope of the
treaty and the meaning of each obligation and exceptions
thereto. These are essential steps that should be taken
alongside well-thought-through and clear ISDS clauses, in line
with countries' policy priorities in this regard.
UNCTAD Series on International Investment Agreements IIView entire presentation