Investor Presentaiton
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INVESTOR-STATE DISPUTE SETTLEMENT: A SEQUEL
In many circumstances, it may be beneficial for both parties to
have their case heard in a national court that has more expertise in
the application of domestic law and can correct obvious misconduct
of the host-country government. Further, the decision of a national
court may have more legitimacy in the eyes of the respondent State
than an award of an international arbitral tribunal and may be easier
to enforce."
Depending on the country concerned, domestic courts
may be faster and cheaper. They will often have the authority to
order more varied types of relief, such as declaratory or injunctive
relief, in addition to monetary damages. On the other hand, for
reasons mentioned above, 72 an investor may view local proceedings
in its host State as undesirable and/or futile. IIAs often try to balance
out these competing interests.
Many IIAs condition an investor's right to have recourse to
international arbitration upon the fulfillment by the investor of
certain requirements connected to domestic courts. These include:
.
mandatory recourse to domestic remedies in the host
State;
"fork-in-the-road" clauses; and
"no-U-turn" provisions.
Such domestic-court-related requirements can be imposed in
IIAs regardless of whether the treaty explicitly names domestic
courts as an ISDS option.
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In theory, an ICSID Convention award should be as easy to enforce as a
judgment of a local court in any ICSID Convention State, given that
Articles 53 and 54 of the ICSID Convention require all State Parties to treat
awards as if they were judgments rendered by the local courts in their
country. See section II.R for a more detailed discussion of enforcement.
See section I.A.
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UNCTAD Series on International Investment Agreements IIView entire presentation