Investor Presentaiton

170 INVESTOR-STATE DISPUTE SETTLEMENT: A SEQUEL as those setting out specific investor protections, dictate when ISDS will be available and what it can help investors achieve. It is, therefore, critically important to thoroughly assess and improve the content of IIAs with a view to clarifying key concepts and provisions, carefully defining the scope of the treaties, and including desired exceptions to any of the substantive obligations undertaken by States in IIAs. These are essential steps that should be taken alongside well-thought-through and clear ISDS clauses. Substantive commitments go hand in hand with their enforcement mechanism as two cornerstones of international investment policies. 1. Minimalist vs. detailed approach to ISDS provisions As far as ISDS provisions are concerned, States, broadly speaking, have taken two approaches. The first is a minimalist (and more traditional) approach, exemplified by most BITs concluded by European countries. It is characterized by a broad ISDS scope and limited procedural specifications. Ordinarily the treaty requires a cooling-off period during which settlement negotiations might occur, followed by offering the investor resort to international arbitration (sometimes in one forum but more often a choice between several forums or several sets of arbitral rules). It also often includes a provision relating to the final and binding nature of the arbitral award. The ISDS specifications typically end there, leaving all procedural aspects to be determined by the selected rules of arbitration. The second, more recent, approach features a more circumscribed ISDS scope and more detailed procedural regulation. A number of new elements are addressed by the treaty itself, as opposed to being left to "outside" arbitration rules or to interpretation by the arbitral tribunal. Such detailed provisions may offer guidance as to the selection of arbitrators and the early dismissal of frivolous claims, and set out specifics regarding certain aspects of the procedure, enforcement of the award, consolidation of UNCTAD Series on International Investment Agreements II

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