Investor Presentaiton

191 appropriate ISDS forums effect. If an IIA does include an "umbrella" clause, it is more likely than not that, under the effet utile principle, the clause will be interpreted to have some specific purpose in the treaty, and will likely elevate certain contractual or other promises given by a State to the investor to the international treaty level. In many circumstances investor-State contracts have dispute resolution clauses whose interaction with the treaty's dispute resolution clause is uncertain. Negotiators planning to include an "umbrella" clause in the treaty may wish to: (1) specify the purpose and reach of the umbrella clause; (2) address possible conflicts between the dispute settlement mechanisms under the contract and under the treaty; and (3) identify the law applicable to any dispute involving the umbrella clause. B. Options for reforming the institutional structure of the ISDS system .215 To effectively deal with the main concerns about systemic deficiencies in the ISDS regime, 214 the following two approaches merit particular consideration: (1) introducing an appeals facility;2 and (2) creating a standing international investment court. They are discussed in turn. 214 215 An overview of these deficiencies is provided in section I.B. In 2004, the ICSID Secretariat mooted the idea of an appeals facility but at that time the idea failed to garner sufficient State support. See ISCID, 2004, Part VI and Annex "Possible Features of an ICSID Appeals Facility". In the almost ten years that have elapsed since, views of many governments may have evolved. UNCTAD Series on International Investment Agreements II

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