Investor Presentaiton
41
[...]
(a) the claimant, on its own behalf, may submit to arbitration
under this Section a claim:
(i) that the respondent has breached
(A) an obligation under Section B,
(B) an investment authorization, or
(C) an investment agreement; and
(ii) that the claimant has incurred loss or damage by reason
of, or arising out of, that breach"
This provision explicitly mentions three causes of action
breach of the treaty, breach of an investment authorization and
breach of an investment contract. The treaty defines the terms
"investment authorization" and "investment agreement". 30 Thus, this
is a median approach between the broad scope ("all disputes relating
to an investment") and the approach limiting arbitrable disputes to
those involving an alleged violation of the IIA. It contains a closed
list of permitted causes of action under the ISDS mechanism.
2. Additional provisions limiting the scope of ISDS
Some IIAS apply further techniques to circumscribe the scope of
ISDS. They are reviewed in turn.
30
"Investment authorization means an authorization that the foreign
investment authority of a Party grants to a covered investment or an
investor of the other Party";
"investment agreement means a written agreement [...] between a
national authority of a Party and a covered investment or an investor of the
other Party (i) that grants rights with respect to natural resources or other
assets that a national authority controls, and (ii) that the covered
investment or the investor relies on in establishing or acquiring the
covered investment" (Article 15.1, footnotes omitted).
UNCTAD Series on International Investment Agreements IIView entire presentation