Article from: TDM 1 (2014), in Editorial
International arbitration to resolve investor-State disputes has increased dramatically over the past two decades. Flows of foreign direct investment have skyrocketed, outgrowing trade flows in the mid-1990s. These flows have been accompanied by an exponential increase of the network of Bilateral Investment Treaties (BITs) and Free-Trade Agreements during this same period. But the growth in international investment agreements (IIAs) has brought a major expansion in the filing of claims.
Designed to depoliticize investment disputes and to provide a neutral and specialized forum to hear disputes arising between foreign investors and the host State of their investment, treaty-based investor-State dispute settlement (ISDS) has given rise to over 550 cases as of the end of 2013, and involved over 90 States as respondents.  With the first investment treaty case in 1994, the system established by IIAs is now reaching its adult years and lends itself to an assessment and considerations about the way forward.
The increase in the number of cases as well as the amounts at stake in several cases, and the use of ISDS mechanisms to challenge public policy measures taken by States in areas such as environment or public health, has generated a strong debate and identified concerns among a broad range of different stakeholders, usually framed by complaints about a perceived lack of legitimacy, consistency and predictability. Almost every State has its "horror case" that has crystallized discontent among authorities and elements of civil society who support broad discretion to regulate in the public interest. At the same time, investors are increasingly criticizing the system for lacking the qualities of predictability, efficiency and economy generally considered as among the key advantages of international arbitration.
In an Issues Note published in May 2013, the United Nations Conference on Trade and Development (UNCTAD), a UN think-tank leading the debate on investment policy issues, identified several concerns that have been repeatedly discussed in various fora, including the complexity of IIAs, the persistence of decisions perceived as infringing upon States' regulatory powers or awarding investors unrealistic or unfair damages, contradictions between arbitral awards leading to inconsistent interpretation of investment protection standards and unpredictability of outcomes, difficulties in correcting "erroneous" arbitral decisions, and questions about the independence and impartiality of arbitrators and the costs and time of arbitral proceedings. This list of concerns, qualified by James Crawford in his "Foreword" to Zachary Douglas' The International Law of Investment Claims (Cambridge University Press 2009) as "an erratic pattern of decisions, with reasoning often impressionistic and displaying a certain disregard for state regulatory prerogatives," has led to several proposals for reform of the ISDS system. The UNCTAD Issues Note identified five broad paths toward reform of the system, as follows:
- Promoting alternative dispute resolution;
- Tailoring the existing system through individual IIAs;
- Limiting investor access to ISDS;
- Introducing an appeals facility; and
- Creating a standing international investment court.
Earlier papers and discussions also identified possible reforms, including supporting access to ISDS for small and medium enterprises, establishing an advisory center for small economies patterned on the WTO Advisory Centre, and better control of third party funding.  Numerous conferences and meetings of the arbitration community have discussed the backlash against investment arbitration and the benefits and drawbacks of various proposed corrective measures and reforms. 
Some of the proposals offered thus far are systemic in nature, i.e., would respond to issues relating to the ISDS system per se, as it is currently established and operating. Others are more technical and procedural and address issues such as repeat appointments of arbitrators, party versus institutional appointment, how to deal with issues conflict and to address the need for reasoned decision, the utility of dissenting opinions and the skyrocketing of costs.
One common thread arising from the experience gathered during the last two decades is the perception that when designing the mechanisms to settle disputes involving private investors and sovereign States, the founding fathers of the current ISDS system did not pay sufficient attention to the public international law dimension of these disputes, and the inherent tensions that would arise when a State's sovereign right to regulate for public purposes would be challenged by private investors. Many of the concerns expressed to date - be they over duration, costs, issue conflict, predictability of outcomes, legitimacy or consistency - actually stem from the inherent public nature of one of the parties to the dispute and the fact that international arbitration, patterned on commercial arbitration in its current form, does not adequately address these distinct features of ISDS.
Notwithstanding these criticisms, it is widely accepted that recourse to international arbitration under investment treaties is here to stay, at least for the foreseeable future. At the same time, the system is not without flexibility to adapt. There are ways and means to address shortcomings, to develop alternative approaches, to develop rules and guidelines to ensure that the system works better. This Special Issue aims particularly at paving the way forward.
When we launched the TDM Special Issue at the invitation of its publishers, we were determined to hear as many voices as possible. To this end, we invited participation from a broad range of stakeholders. We sought the views of experienced practitioners and end-users of the ISDS system, arbitrators, academics, public officials and policy-makers, emphasizing to all our request that they make concrete proposals for reform and improvement of ISDS, including but not limited to the paths that UNCTAD and others have identified. Our goal was to widen the dialogue beyond the usual advocacy pieces seeking broadly either a "call for action" or to "defend the castle." We sought to privilege practical ideas over hand-wringing, to encourage submissions that proposed a constructive way forward rather than simply debated existing shortcomings, growing pains or failures of investment arbitration. It is easy to criticize a past tribunal for "getting it wrong," or a line of doctrine as perhaps not ideally thought out, but that was not the purpose of this Special Issue, and we declined some proposals that seemed focused entirely on the past, without offering concrete suggestions for the future. With regard to such suggestions, we also encouraged contributors to take a pragmatic rather than purely theoretical approach towards the reality of investment treaty arbitration, which to date has been based on an atomized network of investment treaties, in the absence of any universally accepted multilateral investment agreement.
We have been hugely gratified by the response to our Call for Papers. The more than 65 papers featured (after we received an even greater number of initial proposals and abstracts) make this the largest TDM Special Issue to date. The interest in this topic, and the breadth of proposals offered by our contributors, demonstrates both the importance of holding this dialogue and the creativity of astute users and observers of the present system.
Necessarily, the outpouring of contributions for this Special Issue created challenges of both timing and organization. In the interests of a timely launch, we did not seek to harmonize the style or the format of the papers. We also provided some leeway to contributors who required additional time to finalize their contributions, and have offered others the possibility of contributing to a second batch of papers to be uploaded hereafter. We also struggled with how to group the papers into "chapters" or "sections," since so many of them offer cross-cutting analyses that could fall into many different baskets. In particular, it became apparent that it would be both difficult and unfair to some of the papers to simply force them into boxes defined by UNCTAD's five "paths" forward. Each of the papers is unique in its approach. Some discuss proposals that have been tabled or debated already with a novel perspective, while others make thoughtful proposals for other paths of reform, which easily could be characterized as a sixth or a seventh path, employing the UNCTAD nomenclature. The issues at stake warrant all creative approaches, whether systemic or technical, procedural or substantive. This collection of papers is precisely designed to deepen the debate, to come up with innovative solutions, to generate discussions, reactions, responses and possibly concrete outcomes in treaty making, in institutional reform or from within the arbitration tribunals.
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While any organizing system will be somewhat arbitrary, we have chosen to group contributions in eight basic "chapters." The first is an introduction (Chapter I - Setting the Stage for Reform) that allows several authors to set the stage of the call for reform. We start with the article by Chris Campbell, Sophie Nappert and Luke Nottage, "Assessing Treaty-based Investor-State Dispute Settlement: Abandon, Retain or Reform?", which was contributed to the OECD's Freedom of Investment Roundtable Public consultation held from 16 May to 23 July 2012, and which compiled the results of a broad online consultation of the members of the OGEMID network of practitioners. The authors identify the areas of reform that received strongest support at that time (and others that appeared less popular). This background piece provides a useful backdrop for today's debate.
We continue our background chapter with a working paper by the OECD Secretariat in support of the FOI Roundtable, prepared by David Gaukrodger and Kathryn Gordon. Entitled "Inter-Governmental Evaluation of Investor-State Dispute Settlement: Recent Work at the OECD-hosted Freedom of Investment Roundtable," it provides a brief overview of Roundtable scoping-level work on ISDS in a few selected areas: enforcement of arbitral awards; remedies and the impact of investment law on a level playing field for investors; the characteristics, selection and regulation of arbitrators; and issues of consistency. The paper then briefly outlines current issues of further work by the Secretariat relating to consistency, including shareholder claims in ISDS, and the issue of government "exit and voice" with regard to investment treaties. It should be noted that David Gaukrodger has authored an in-depth research paper on shareholder claims and issues of consistency in international investment agreements.
Our third introductory contribution is a paper by Christoph Schreuer, asking "Do We Need Investment Arbitration?" Schreuer argues that despite its critics, the current ISDS system serves the interest of host States as well as investors by providing impartial and effective dispute settlement, and in so doing, enhancing security as an incentive to increased investment, which, in turn, would stimulate economic development. He concludes that despite certain weaknesses, at present there is no substitute for investment arbitration for the orderly settlement of investment disputes, and accordingly that calls for its significant restriction should be resisted.
In his paper entitled "Perspectives for Investment Arbitration: Consistency as a Policy Goal?", Rudolf Dolzer draws lessons from the evolution of investment arbitration over the last two decades and highlights how it has become the modern field of arbitration par excellence, observed by specialists of neighboring disciplines of international law with silent envy. He compares the perception from the outside with the critical negative climate on the inside. Business as usual on the ground of investment arbitration is accompanied by loud voices of criticism that he analyzes in his paper. He particularly focuses on the call for consistency and wonders whether it is actually called for and if so, how it can be achieved.
J.J. Saulino and Josh Kallmer's paper, entitled "The Emperor Has No Clothes: A Critique of the Debate of Reform of the ISDS 'System'", follows. The authors suggest that there is no ISDS "system" as such, only the illusion of one, given that there is no unified body of applicable law, but rather a fragmented collection of bilateral and regional treaties negotiated based on individualized circumstances over the span of several decades. They conclude that while investment law "experts" have been focused on the need for consistency, States have not shown a particular appetite for a more unified global system or regime for investor protection, preferring to focus more flexibly on their sovereign economic policy choices.
In his piece, entitled "Making impossible investor-State reform possible", Luis Alberto Gonzalez Garcia discusses all five of the paths for reform proposed by UNCTAD and suggests that most of these involve fundamental changes to investment treaties that he considers impracticable or even impossible at this stage. He focuses instead on possible ways to reform the system without making changes to the current treaties, such as developing new ways of selecting arbitrators; adopting clearer ethical standards for arbitrators, counsel and experts in investment arbitration; and creating an International Investment Law Commission to seek to harmonize legal doctrine and guide tribunals in their work.
Our introductory chapter concludes with a paper by Silvia Constain, entitled "ISDS growing pains and responsible adulthood." The author argues that international investment arbitration is growing in a disorganized and inconsistent manner that is not convenient for the system, investors, governments or other stakeholders, and that governments should provide leadership in several ways. The best path forward, she believes, would be concerted action to agree on a single model treaty text to individually replace existing bilateral and regional IIAs that feature inconsistent, overlapping and diverging provisions, together with an ISDS system featuring a standing pool of highly qualified arbitrators and a standing appellate body to ensure consistent and coherent interpretation and application of the rules.
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The second chapter of this Special Issue (Chapter II - Methodological Approaches) focuses on methodological approaches to reform of the ISDS system. Antonio Parra, former Deputy Secretary General of ICSID, reminds us of the experience of a first set of amendments proposed by the Administrative Council of ICSID in 2006, after a nourished debate among other things over the desirability of reform of transparency rules, enhanced public access and/or an appellate system. In his paper, entitled "Advancing Reform at ICSID", he reviews this first stage of reforms to ICSID, and suggests further steps forward, including the possibility of offering mediation services and the idea of establishing a permanent consultative body. Of course, Parra's paper is also relevant to the discussion of specific reform of ICSID that is discussed in Chapter V, but we include it in Chapter II as an interesting illustration of one method of discussing and conducting reform.
As a counterpoint to this focus on the methodology of reforming the ICSID system, the next contribution examines the negotiation of rules on transparency for international investment arbitration at UNCITRAL. Julia Salasky and Corinne Montineri take us inside "UN Commission on International Trade Law and multilateral rule-making - Consensus, sovereignty and the role of international organizations in the preparation of the UNCITRAL Rules on Transparency." Their paper is illustrative of a different methodology and approach to reform. In addition to a detailed account of the process that led to the adoption of the Transparency Rules and the expected way forward, the paper analyses the role of international organizations, including inter-governmental and non-governmental organizations in the process and the consensus building required to achieve a universally accepted standard.
The next paper by Andrea Kupfer Schneider, entitled "Error correction and dispute system design in investor-State arbitration", is particularly relevant in the analysis of an issue specific to ICSID arbitration. It reviews annulment committee processes and decisions and then offers proposals for changing ICSID - both the law and the process - using dispute system design theory. In its conclusions, it argues strongly that any changes must be stakeholder-driven. Like Antonio Parra's contribution, this paper is relevant also for Chapter V on Further Advancing the Reform of ICSID. However, by including this paper in Chapter II, we wished to draw on the proposed methodology and the use of dispute system design when approaching reform of the ISDS system.
An interesting approach is presented by Catherine Rogers in her study of "The Politics of International Investment Arbitrators." She discusses empirical research that has been used to evaluate selected reform proposals in investment arbitration, including Albert van den Berg's study of dissenting opinions by party-appointed arbitrators (and related proposals to dramatically reduce if not eliminate dissenting opinions), and Gus Van Harten's study of jurisdictional rulings (and related proposal for a permanent International Investment Court). She highlights the risks of linking empirical research to specific reform proposals; recommends future empirical research; and calls for evaluating quantitative empirical findings through comparative analysis with other international tribunals, and for greater dialogue between empirical research and other forms of qualitative scholarship.
Finally, Locknie Hsu, in her paper entitled "Investor-State Dispute Settlement Reform - Examining the Formative Aspect of Investment Treaty Commitments: Lessons from Commercial Law and Trade Law", draws several parallels between reform of the international investment regime and the evolution of the international trading system and commercial arbitration. She suggests, for example, that several of the underlying concerns are perpetuated in the system because negotiators of new agreements habitually refer to provisions of prior agreements for 'templates', akin to commercial parties using 'standard form' contracts rather than negotiating tailored provisions. Similarly, investors, host States and their counsel could learn from the growing use of ADR clauses in the commercial world and of preliminary consultations in WTO disputes. Finally, treaty negotiators should consider the possible inclusion of risk-allocation provisions with respect to regulatory areas with broad public policy ramifications, akin to liquidated damages clauses in commercial agreements. Her paper reminds us that the search for paths forward for the ISDS system does not occur in a vacuum, and lessons may be learned from other dispute resolution systems, notwithstanding their considerable differences.
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Some of the contributions we received were focused primarily on regional experiences - in Latin America, Asia and Africa, as well as the continuing challenge in Europe of allocating competence for IIAs and ISDS between the EU and its Member States - and our third chapter is devoted to these (Chapter III - Regional Experiences with ISDS). We begin by taking a close look at the experience of Latin America, where much of the debate over possible reform avenues by States has been born. Latin America was the last region to embrace widespread use of BITs but also the first to be hit by investor-State disputes in substantial numbers, and several authors focus their submissions on "lessons learned" in the region, including through attempts at reforming investment treaties and proposed regional alternatives to existing ISDS avenues.
First, in her paper entitled "Proposal of changes to the system of investment dispute resolution: a contribution from South America", Hildegard Rondón de Sansó analyses the concrete paths taken by a number of Latin American countries, members of UNASUR, to reform the ISDS system and particularly to create a regional investment court, region-specific dispute settlement rules and an advisory centre for countries of the region. Her paper offers some insight into the challenges faced by Latin American countries when designing a system to cater for their concerns and specificities.
Next, Rodrigo Polanco Lazo in his paper entitled "Is There a Life for Latin American Countries After Denouncing the ICSID Convention?", studies the reasons why some Latin American countries have terminated IIAs and denounced the ICSID Convention. He focuses on the alternatives to treaty-based investor-State arbitration that these countries are pursuing. The author concludes, however, that this path of reform will not necessarily achieve the purpose that inspired the denunciation and termination of investment treaties, unless the concerned States appropriately manage their "newly" available options that go beyond a mere return to domestic courts to settle investment disputes.
Alvaro Galindo also offers a paper, soon to be uploaded to the Special Issue, about the experience of Ecuador with investment treaties and disputes and the various actions taken to correct the course. He also addresses the UNASUR initiative that Ecuador helped promote.
Latin America with its record number of ISDS cases is also a region where new players are becoming involved in investment disputes and where their role, as part of the system, needs to be assessed. This is what William Shipley seeks to do in his paper entitled "What's Yours is Mine: Conflict of Law and Conflict of Interest Regarding Indigenous Property Rights in Latin American Investment Dispute Arbitration", which analyses the interests of indigenous peoples whose rights may be adversely affected as a result of an investment dispute but whose perspectives may not be adequately represented by their States, whose interests may diverge from those of particular constituencies. He argues that investment arbitration should allow procedural measures to incorporate the perspectives of (and possible claims by) third party indigenous peoples, failing which the issue should be addressed directly through treaty amendment.
As a counterpoint to these articles focusing on the Latin American experience, several authors address regional experiences and approaches among ASEAN countries and the specificities of investment disputes in Africa. First, in a paper entitled "A Resilient Boat Sailing in Stormy Seas: ASEAN Investment Agreements and the Current Investor-State Dispute Settlement Regime", Teerawat Wongkaew reviews the changes in the investment framework brought by the ASEAN Comprehensive Investment Agreement, that consolidates the experience of other regions in ISDS and the specificities of ASEAN member countries. The author contrasts the "investment-protective" dimension of ASEAN instruments with their "sovereignty-preserving" dimension, and suggests that these dimensions are being more effectively balanced in recent treaties than in the past, although certain challenges remain for the current ASEAN architecture.
Next, an interesting proposal is made by Thanh Tu Nguyen and Thi Chau Quynh Vu in their paper entitled "Investor-State Dispute Settlement from the Perspective of Vietnam: Looking for a 'Post-Honeymoon' Reform", where the authors examine the Vietnamese network of investment treaties and domestic regulations as well as cooperation and coordination mechanisms for investor-state dispute settlement and prevention, and three treaty-based cases in which Vietnam has been respondent. The authors identify the drawbacks and concerns raised by this experience, and propose a gradual but systematic re-negotiation of investment treaties, to achieve a harmonization of investment rules and policies and improvement of cooperation and coordination mechanisms for investor-state dispute settlement and prevention. In terms of regional efforts in the context of the establishment of the ASEAN Economic Community in 2015, their paper suggests the establishment of an ASEAN advisory center for ISDS, a facility for countries in the regional to respond to claims brought by investors. All of these present initial steps in finding a clearer path toward an effective and fair system for investor-state dispute settlement and prevention from the perspective of a developing country like Vietnam.
The next two papers look into the specificities of ISDS in Africa. The paper by Won Kidane asks the question of "ICSID's Relevance for the Resolution of China-Africa Disputes." The author notes that while African countries were among the earliest and most enthusiastic supporters of the ICSID system, that system has not served such countries well. Today Africa's largest infrastructure financier is no longer the World Bank; it is China, and China does not have as much experience with ICSID as Africa. In order to stay relevant for Africa and its new economic partners, the author argues, ICSID must make a conscious effort to address the diversity deficit, encourage hearings to take place outside of the traditional venues, and consider revised approaches to cost allocation and other factors. At a deeper level, ICSID must move beyond a past history of "benevolent imposition and effective exclusion from meaningful decision making," and attempt to remedy perceived inequities of the last half century of arbitral justice.
The paper by Uche Ewelukwa Ofodile, entitled "Africa and the System of Investor-State Dispute Settlement: To Reject or Not to Reject?" examines both the stated position of, and the realities of action by, countries in Sub-Saharan Africa (SSA) regarding ISDS reform proposals. The author argues that through sub-regional level instruments like the Investment Agreement for the COMESA Common Investment Area, the SADC Bilateral Investment Treaty Template, and the SADC Protocol on Investment, countries in SSA appear to express a desire for a radically transformed ISDS system. However, their actions have not kept pace, and in their BITs and related treaties, SSA countries still cling to the traditional approach to ISDS and BITs. The paper suggests that the inconsistent position of SSA countries on the ISDS question deserves closer study, as do the myriad factors that limit the capacity of African countries to negotiate tailored and development-oriented IIAs and undermine their effective participation in the international investment law regime more generally.
Finally, our chapter on regional experiences travels back to Europe, and includes a contribution from Jan Asmus Bischoff, entitled "Initial hiccups or more? About the efforts of the EU to find its future role in international investment law." Focusing on the interplay between public international law and EU law, and on improvements to the ISDS system envisaged by European institutions, the author identifies the practical difficulties that the internal allocation of competences between the EU and its Member States poses for future IIAs, and outlines what ISDS mechanisms in future EU IIAs might look like, in a post-Lisbon Treaty world. The contribution is particularly timely in light of the European Union public consultation on investor-state dispute settlement and the Transatlantic Trade and Investment Partnership just begun by EU Trade Commissioner Karel De Gucht.
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Not surprisingly, the focus of a majority of proposals for reform is on the role of States, since investment treaties are economic policy instruments devised and negotiated by States. International investment law is created by States and States are the masters of their agreements and their use. Our largest Chapter (Chapter IV - Strengthening the Role of States) therefore features proposals to strengthen the involvement of States, both in interpreting existing treaty language (Section I) and through revising specific treaty text or negotiating new treaties (Section II). We also include papers examining the possibility of establishing regional or international courts and a renewed interest in State-State procedures (Section III).
We begin by compiling contributions on interpretation of treaties by the State parties to the treaties or by joint commissions or technical committees established under these treaties (Section I - Treaty Interpretation). In her paper entitled "Delegating Interpretative Authority in Investment Treaties: The Case of Joint Commissions," Anne van Aaken suggests that in the debate over alternative approaches for reforming the ISDS system, an important point has been neglected, namely the role of joint commissions of the State parties in resolving certain problems in investment treaties. She identifies various alternative authorities to which interpretative authority could be transferred, as well as criteria such as credibility of commitment and relevant expertise against which to benchmark the outsourcing of interpretation, and proceeds with a comparative analysis between outsourcing to a joint commission and outsourcing to an arbitral tribunal.
Another approach is taken by Joshua Karton in his paper on "Reform of Investor-State Dispute Settlement: Lessons from International Uniform Law." It describes the answers yielded by the experience of the international uniform law movement and identifies which non-binding aids to interpretation are most effective in promoting quality and consistency, without necessarily the establishment of centralized administrative or appellate bodies.
Michael Ewing-Chow and Junianto James Losari, in their paper "Which is to be the Master?: Extra-Arbitral Interpretative Procedures for IIAs", take the reader beyond the textual interpretative process and interpretation based on a State-State arbitration, such as in the case between Ecuador and the United States on interpretation of a provision of the Ecuador-US BIT. The authors suggest that there are alternative methods of interpretation, for example through joint interpretation procedures such as under NAFTA, or implicitly through the incorporation of customary rules of interpretation that could go beyond a binary adjudicative process and help develop an "epistemic community" that would be able to think about the issue in a more multifaceted way.
Interpretation by the State parties to the treaty is also the proposal advocated by Tomoko Ishikawa in her paper entitled "Keeping interpretation of investment treaty arbitration on track: the role of State parties." Starting with a review of recent cases involving sovereign debt instruments and a perception that tribunals have adopted an overbroad approach to jurisdiction that goes beyond the treaty framework acceptable to both of the State parties, the paper then analyses the difficulty in determining the objective intentions of the contracting State parties, and argues that there are situations where this difficulty (arising from a lack of explicit language) leads to unforeseen and unacceptable tribunal interpretations. Bearing in mind the need to respect investors' legitimate expectations, the article proposes the inclusion of a formal mechanism for using joint interpretative statements as a way to achieve balance between the interpretative power of the States and investors' rights to due process.
A novel voice in investment treaty interpretation comes from Ugur Erman Özgür and his paper "In search of consistency and fairness in investor-State arbitration: an institutional approach to interpreting the doctrine of legitimate expectation." The paper employs the New Institutional Economics framework to assess the role of the State's municipal and institutional reality. It reviews several cases brought against Argentina and highlights the divergent understanding by various tribunals of the institutional and administrative developments in Argentina. It focuses on the analysis of the concepts of regulatory fairness and regulatory certainty in the Total award, and draws lessons for a codification of institutional principles into IIAs or at the disposal of an arbitral tribunal. The paper's analysis is also relevant to the discussion of reform of the ISDS system through revisions of treaties addressed in the next subsection of this Chapter.
Our next authors, Baiju S. Vasani and Anastasiya Ugale, address the role of the "Travaux Préparatoires and the legitimacy of Investor-State Arbitration." Starting with the assessment that the investor-State arbitration system is not indefectible but also that is it not flawed to the extent that calls for its wholesale abolition need be given disproportionate prominence, the authors suggest that the ISDS system should be molded carefully with a scalpel rather than attacked with a sledgehammer. To do so and as one way forward in strengthening the interpretation of consent, they advocate a more thorough and systematic recourse to the treaty's travaux préparatoires to elucidate the terms of the State parties' consent and their intentions regarding substantive treaty standards.
As a conclusion to this section on interpretation and on the role of State parties in interpretation, we include the paper by Anthea Roberts entitled "Power and Persuasion in Investment Treaty Interpretation: the Dual Role of States", where the author discusses how analysis of subsequent agreements and practice can help treaty parties and tribunals engage in a constructive dialogue about interpretation. The paper examines why and how this evidence is applied in public international law, including human rights law, so as to develop a theory about its use and its limits in the investment context. It takes up the practical challenge of providing an illustrative list of the types of subsequent agreements and practices most readily available in the investment context, and provides a road-map for States wishing to generate and plead, and tribunals wishing to identify and assess, such evidence.
The next section of this Chapter on Strengthening the Role of States features contributions focusing on revisions to treaty language (Section II -- Revising Treaty Language). This responds directly to two of UNCTAD's suggested paths for reform, consisting of limiting access to ISDS through treaties and revising treaties more broadly to clarify their scope of application and limit the extent of their coverage.
To begin this section, we acknowledge the leadership of the government of the United States for spearheading debate about reform of investment treaties, by substantially revising its model treaty to take into account its experience with investment disputes under NAFTA and seeking to rebalance the State's rights and obligations under investment treaties. A paper by Karin Kizer and Jeremy Sharpe, entitled "Reform of Investor-State Dispute Settlement: the US Experience", draws on the U.S. experience with ISDS and focuses on how reforms can be achieved through the negotiation of agreements. It discusses the periodic review by the United States of its BIT program, and the way its Model BIT has been revised and clarified in important respects, including by emphasizing the preservation of appropriate regulatory discretion for host States to promote legitimate public welfare objectives, aiming at greater precision in obligations, reform of ISDS mechanisms through transparency and the negotiation of an appeal mechanism, and the narrowing of claims and claimants.
Somewhat as a counterpoint, we next feature Simon Lester's contribution, "Liberalization or Litigation? Time to Rethink the International Investment Regime." The author argues that the rules contained in U.S. international trade and investment agreements are not always about liberalization of foreign investment as it is usually understood (i.e., encouraging and welcoming foreign investment, and treating it like domestic investment), but in many instances about giving special legal protections to American companies that invest abroad. He suggests that liberalization of foreign investment would be better served by eliminating vague legal principles that provide numerous opportunities for litigation, and in so doing undermine the more basic principle of treating foreign and domestic investment equally. He contends that if international rules are to be used at all in this area, a focus on nondiscrimination, and a more flexible legal framework, would be preferable to the existing system.
Several papers explore the notion of limiting treaty protection through revision of treaty text. First, in her paper entitled "Rethinking Rights and Responsibilities In Investor-State Dispute Settlement: Some Model International Investment Agreement Provisions", Elizabeth Boomer revisits earlier proposals of model treaties, such as by the IISD, the Commonwealth Secretariat or UNCTAD's IPFSD. She focuses on rebalancing rights and obligations of States under investment treaties and places emphasis on novel approaches to safeguard the State's right to regulate for public policy objectives.
Next, the paper by Daniel Kalderimis, "Back to the Future: Contemplating a Return to the Exhaustion Rules", reminds us of the historical context of recourse to international arbitration in investment treaties, and emphasizes in particular its nature as an exception to the requirement under public international law of prior recourse to domestic courts and exhaustion of local remedies. He asks whether developed countries should consider reintroducing the exhaustion rule to ISDS claims by investors of other developed countries. His response is that they should, but only if exhaustion rules are applied in a more modern form, which required investors to prosecute, and also empowered domestic courts to rule upon, international investment claims by applying BIT standards as well as domestic law rules.
Mara Valenti's paper on "Restricting the Scope of International Investment Agreements as a Means to Set Limits to the Extent of Arbitral Jurisdiction" focuses on the definitions of investor and investment, and the way in which investment treaties could be used to limit access to international arbitration for frivolous or unmeritorious claims.
In their paper entitled: "Limiting Investor Access to Investment Arbitration - A Solution without a Problem?" Liang-Ying Tan and Amal Bouchenaki discuss the efficacy and other consequences of the mechanisms used to limit access by investors to ISDS vis-à-vis their intended outcomes and assess whether they adequately respond to criticisms that ISDS has become too easily accessible by investors with unmeritorious claims, resulting in onerous burdens of time and expense on respondent States, and even worse, unjustifiable awards. They analyse both the treaty practice and the outcomes of awards where access has been denied and where limits have been found not to apply. They then ask the question whether, if access can be effectively policed through more robust implementation of the existing limits, new limitations are called for and explore how the existing limits (if they are truly insufficient) can be made more effective while still preserving the values of the system- and the system itself.
Our next contribution, "Exclusion from Within the Ambit of a Protected Investor, a Fair Price to Pay for the Act of Abusive Treaty Shopping" by Vidushi Gupta, discusses changes to investment treaty language to limit investor access to ISDS absent significant connections to the purported State of nationality. He examines various drafting techniques such as the inclusion of a restrictive definition of an 'investor' and/or a 'denial of benefits' clause, and identifies circumstances under which tribunals have not permitted purported investors to pursue claims, despite the absence of such restrictions in treaty language.
"A Few Pragmatic Observations on How BITs should be Modified to Incorporate Human Rights Obligations", by Patrick Dumberry and Gabrielle Dumas-Aubin, observes that while international law as it now stands does not impose any direct legal obligations on corporations (except for jus cogens norms), nothing prevents countries from signing BITs imposing human rights obligations upon corporations. They examine concretely how such BITs could be drafted (and existing ones be amended), including where non-investment obligations should be located in BITs; what type of language should be used; which international instruments should be referred to in BITs and why; and which enforcement mechanisms should be adopted.
Finally, in his article "On Genealogy of Proposals to Reform Investor-State Arbitration", Ahmad Ali Ghouri starts from the proposition that while demands have grown for greater incorporation of non-investment public law values in the international investment regime, the overall structure of the regime is unlikely to change. In light of this reality, he explores three different "models" of how public interest issues might be integrated more significantly into investor-State arbitration: a "contract" model, an "institutional capacity building" model, and an "arbitral activist" model. He posits that the first two models eventually fall-back on the third, necessitating that the investor-State arbitral system develop indigenous principles of systemic self-governance. He offers a preliminary sketch of the possible roadmap for formulation of such indigenous principles.
As the many papers collected in these Sections on interpretation and revision demonstrate, the existing ISDS system is not static and is capable of reform. The driving forces for reform are and remain the States themselves, and the authors offer concrete examples of interpretation, clarification and revision to ensure that treaty language responds to the primary objective of the treaties, of protecting investors while ensuring a balance with the State's right to regulate for public purposes. At the same time, some observers have proposed more fundamental structural reforms to strengthen the role of States, including expanding recourse to State-State procedures in the resolution of investor State disputes and/or fostering the creation of an investment court. The final Section of this Chapter focuses on those issues (Section III- State-State Procedures and a Standing Investment Court).
We begin with a paper by Theodore R. Posner and Marguerite C. Walter entitled "The abiding role of State-State engagement in the resolution of investor-State disputes", which analyses the role State-State interaction can play when the host State in an investment dispute resists enforcing an arbitral award against it or resists going to arbitration in the first place. Taking the example of dispute settlement proceedings in the WTO, the authors discuss the role that clarification of a particular obligation through a State-State process can have in informing the expectations or the objectives of investors. They also assess possible uses of State-State dispute settlement as an alternative to investor-State dispute settlement.
A second paper by Anthea Roberts, entitled "State-to-State Investment Treaty Arbitration : a Hybrid Theory of Interdependent Rights and Shared Interpretative Authority", bridges the gap with Section I as it discusses both the re-emergence of State-State arbitration and the allocation of interpretative authority among the treaty parties, investor-State tribunals and state-to-state tribunals. The paper suggests a progressive mechanism by which treaty parties can re-engage with the system in order to correct existing imbalances and help share its development from within.
Tim Feighery, in his paper "In search of a Roadmap: Lessons for the ISDS Regime in the U.S. Experience of Lump-Sum Claims Settlement Processes", suggests that there may be a newly-emergent role for diplomatic protection as a supplement to, or indeed for some States, a replacement of the ISDS regime. Drawing upon the U.S. experience with several commissions to address international mass claims, he argues that unless States have a greater sense of control and predictability in the system, they inevitably will withdraw or reduce participation in the regime.
Two papers look more closely at the possibility of establishing a regional or a multilateral investment court. While the example of the Arab Investment Court has not been picked up by contributors for this Special Issue, no doubt it will contribute to further thinking about the feasibility of a regional approach. In his paper entitled "Permanent Investment Tribunals: the Momentum is Building Up", Omar Garcia-Bolivar describes the options taken by countries in Latin America to set up a permanent investment court under the auspices of UNASUR, and identifies the features of such a permanent tribunal. Lessons can be learned from this experience when thinking about establishing standing tribunals to hear investment disputes.
In his paper on "The Challenges of Creating a Standing International Investment Court", Eduardo Zuleta discusses the challenges of elaborating a multilateral treaty to establish a Court, issues of impartiality and independence of adjudicators as well as concerns of predictability, party autonomy and transparency.
Several other papers are relevant to this Section, such as Roberto Echandi's paper on "Investor-State Conflict Management: A Preliminary Sketch", which highlights the preventive role of State authorities and proposes elements of dispute prevention policies. However for a better flow of various papers, it has been included in Chapter VII on Investor-State Mediation.
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Chapter V focuses specifically on reform of ICSID as the cornerstone of the current ISDS system (Chapter V- Further Advancing the Reform of ICSID). Our contributors offer several concrete proposals for reforming, streamlining, and simplifying ICSID rules, both for original arbitration proceedings and for annulment and other post-award procedures.
First, in a piece entitled "Achieving a Faster ICSID", Adam Raviv takes a practical approach based on empirical data. He examines the length of ICSID arbitrations as they are currently practiced and analyses why they take so long. He reviews each stage of an ICSID proceeding and offers a variety of suggestions to speed them up, focusing on amendments to the ICSID Rules and institutional practices.
On a similar note, "Streamlining ICSID," by Joongi Kim, also starts with an in-depth analysis of various stages of the arbitral proceedings at ICSID and provides comprehensive statistical information on key stages. The paper then examines the dispute settlement processes of other international institutions to gain insight from a comparative perspective into ways to reform ICSID arbitration to streamline the process and assure parties a more expeditious settlement of the disputes at hand.
Roberto Castro de Figueiredo addresses a different challenge at ICSID, namely "Fragmentation and Harmonization in the ICSID Decision-Making Process." He contends that the functionality of the ICSID system is threatened by the inherent fragmentation of the ICSID decision-making process, which leads to inconsistent analyses of core jurisdictional issues that potentially affect not just the parties to a particular dispute, but all Contracting States. He suggests that harmonization could be fostered by the adoption of interpretative resolutions by the Administrative Council, as a source of the intention of the Contracting States.
Four contributors tackle the issue of ICSID annulment and other post-award remedies. First, Nikolas Tsolakidis's paper, entitled "ICSID Annulment Standards: Who has finally won the Reisman vs Broches debate two decades ago?", reengages with the spirited debate between Michael Reisman and Aaron Broches and tries to assess, by reference to subsequent decided annulment cases, which analysis has been more successful or whether both have been ignored. The paper concludes with an assessment of the perceived shortcomings of ICSID's annulment process and ways it can be remedied or reformed.
Mallory Silberman asks: on "ICSID Annulment Reform, are we looking at the right problem?" She argues that while some have complained that there is an overabundance of annulment, the problem instead might be an overabundance of annulment claims, which present significant costs that the parties and the system must bear without any real relief. The paper details the apparent and hidden costs associated with annulment petitions and examines potential avenues for reducing the number of unmeritorious claims, thereby reducing the costs borne by the parties and the system.
Vanessa Giraud Martinelli's paper on "The trembling legitimacy of the ICSID annulment system in the light of decisions by Ad Hoc Committees" starts by observing the increase in annulment proceedings after 2001, and posits that some ad hoc committees have, through their extensive interpretation of underlying legal issues in the dispute, stretched the purposes of the ICSID annulment system to the limit. In order to safeguard the essence of annulment procedures under ICSID, she proposes the amendment of the ICSID Arbitration Rules by introducing a scrutiny of the award by a permanent body (akin to the scrutiny function performed by the ICC Court of Arbitration), and the creation of Guidelines for the Conduct of Ad Hoc Committees to help steer them towards best practices.
Finally, Diego Gosis in his paper focuses on "Addressing and Redressing Errors in ICSID Arbitration." He starts with the assessment that the ICSID Convention and Rules allow remedies for awards that contains petty errors, but the system seems to limit itself to the correction of small rather than significant errors, through an inadequate reading of the applicable texts. Gosis discusses the proper interpretation and use of the remedial devices available in ICSID arbitration to cure defective awards, and proposes certain improvements aimed at bringing the investment arbitration system up to par with the current developments in this rapidly expanding area of law.
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Our next chapter is devoted to the ongoing debate about an appeals mechanism, whether treaty-based or through a multilateral facility such as an appeal facility proposed by ICSID (Chapter VI - An Appellate Mechanism). As suggested by Antonio Parra in his paper in Chapter II, the debate is not new and indeed has been ongoing for a number of years, particularly after the United States included in its free trade agreements with several countries (most recently the Korea-US Free Trade Agreement (KORUS)) a commitment to negotiate an appellate mechanism. The early initiatives lost momentum after encountering strong resistance from other OECD countries 10 years ago, but the pendulum is swinging back now, with the negotiation of mega-IIAs such as the Trans-Pacific Partnership Agreement (TPP) and the EU-US FTA. The EU is also including into its negotiating mandate the design of an appellate system.
Chapter VI opens with a paper by Bart Legum, revisiting his earlier skepticism about an appellate mechanism reflected in several prior papers. In "Appellate Mechanisms for Investment Arbitration: Worth a Second Look for the Trans-Pacific Partnership and the Proposed EU-US FTA?", he re-examines appellate mechanisms in light of the TPP and the EU-US FTA ,and suggests that a second look might be warranted.
Next, Eun Young Park addresses "Appellate Review in Investor State Arbitration", and identifies the pros and cons of an appellate mechanism. The author argues that while such an appellate review process may be necessary in order to promote consistency and predictability in legal interpretation, such process would need to be devised so as not to undermine the basic underlying pillar of investor-State arbitrations, namely party autonomy.
Gabriel Bottini, in his paper entitled "Reform of the Investor-State arbitration regime: the appeal proposal", argues that notwithstanding the failure of prior proposals, the creation of an appeal mechanism is still generally suggested as one of the ways to improve the functioning of investment arbitration and strengthen its legitimacy. The author argues that objections to an appeal mechanism are based on questionable assumptions, and that an appellate mechanism could play an important role in alleviating concerns expressed about the current ISDS system.
Jaemin Lee places the debate about an appellate mechanism in the broader context of experience with the WTO dispute settlement mechanism. In his paper entitled "Introduction of an Appellate Review Mechanism for International Investment Disputes - Expected Benefits and Remaining Tasks", he examines the pluses and minuses of an appeals system. In particular he examines the issue from the perspective of States, particularly those with limited resources and capacity, in terms of their participation in international investment arbitration.
Finally, Kristina Andelic's thought-provoking paper examines "Why ICSID Doesn't' Need an Appellate procedure, and What to do Instead." The author argues that there should be no appellate procedure under ICSID because the lack of confidence in the system is based not on imperfections of the prescribed mechanisms for settlement of disputes, but rather on changed circumstances in economic relations. Considering that in times of crisis, there is a greater need for stability of existing institutions, the author argues that changing a functional procedure would be counter-productive. But she suggests instead the adaptation of existing procedures in a way to provide greater legitimacy to the ISDS system.
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Chapter VII addresses momentum in the push for expanded investor-State mediation, with the recently adopted IBA Investor-State Mediation Rules and the actual recourse to these rules in the investor-State context (Chapter VII - Investor-State Mediation). This chapter dovetails nicely with the ICSID Review of January 2014  entirely focused on investment mediation, where several authors contribute to an in-depth analysis of mediation as a viable alternative to investment arbitration and explore the role of institutions such as ICSID in administering mediation processes. Although the availability of mediation as an alternative to arbitration is not new and existing treaties do not prevent parties from seeking assistance to settle their dispute before or during the course of an arbitration, to date any treaty language on the issue remained rather vague. A new generation of treaties - spearheaded by the US Model BIT, the templates for negotiation used by the EU and several regional arrangements - specifically proposes mediation as an option to settle investment disputes either before or in parallel to an arbitration procedure. This chapter focuses on investor-State mediation as a practical means to respond to a call for faster and cheaper dispute resolution mechanisms that in particular facilitate preservation of relationships between foreign investors and host States.
The papers in this chapter should be read together with the contributions in earlier chapters by Antonio Parra, who discusses mediation of investment disputes under ICSID, and Locknie Sue, who discusses mediation as a viable option for investors. In addition:
Fatma Khalifa in her paper entitled "Mediation use in ISDS" identifies the role of mediation in an investment dispute, compares it with other dispute settlement mechanisms, and explains the mediation process before making proposals for a way forward, strengthening the recourse to mediation in investment disputes.
Wolf von Kumberg, Jeremy Lack and Michael Leathes contend that "The time to introduce mediation has come", in their paper on "Enabling Early Settlement in Investor-State Arbitration." They review the current status of mediation in ISDS, including the contribution of the IBA's 2012 Rules for Investor-State Mediation, examine what parties need and how mediation can deliver, and offer ten practical suggestions to aid the implementation of the IBA Rules, to enable the "systematic adoption of mediation in ISDS, alongside, and dovetailed into, the arbitral process."
Edna Sussman's paper, "The Advantages of Mediation and the Special Challenges to its Utilization in Investor-State Disputes", likewise responds to UNCTAD's call for an increasing resort to alternatives dispute resolution methods and the IBA's issuance of its 2012 Rules for Investor-State Mediation. It outlines the many benefits that a mediation process offers, reviews the possible use of mediation in the investor-State context and discusses the many unique obstacles that are presented when a State is a party.
Nancy Welsh and Andrea Kupfer Schneider take a systemic approach in their paper entitled "Integrating Mediation Into Investor-State Arbitration." Taking stock of the U.S. domestic experience to identify elements of the mediation process that can be made compulsory and the effects of this choice, their paper recommends the integration of a default model of mediation into the investor-State context. This model would begin in a facilitative manner, in order to increase trust-building and information exchange regarding underlying interests, but certain elements of mediation could be made compulsory.
An interesting use of ADR is proposed in the paper by Nicolas Angelet on "Post-Award ADR and Restitution," where the author argues that the purpose of the investment protection regime to create stable relations and promote economic development warrants greater attention to restitution, which is the primary means of reparation under international law and the best means to get an investor-State relationship back on track. The author addresses a number of real or perceived obstacles to restitution in international law and argues in favor of post-award ADR to be used after or on the basis of an arbitral decision on wrongfulness.
Also of interest is Roberto Echandi's examination of the non-contentious use of dispute prevention policies to avoid disputes altogether, in his paper entitled "Investor-State Conflict Management: a Preliminary Sketch." The paper introduces the concept of conflict management and analyses some "best practice" cases where governments set up mechanisms to prevent and efficiently manage conflicts arising with foreign investors.
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As many of our contributors recognize, another path for reform may be from within the existing system, rather than through structural reforms that seek fundamental change to it. The articles included in Chapter VIII - Reform from Within suggest that arbitral tribunals can meaningfully contribute to a reform of the system from within by a variety of means, including for example applying standards of review or methods such as capacity-limitation to distinguish investors from exporters; allowing for collective action; by re-conceptualizing investor-State arbitration as a form of public law-based judicial review; by revisiting the notion of a "margin of appreciation" or conceptualizing jurisdiction as a balancing test rather than application of formalistic rules; or by employing basic procedural tools already available to them, such as interim costs orders. They also suggest that it is up to the parties to request arbitrators to make use of comparative public law methodology and also that there is room even within the existing ICSID system for States to bring counterclaims against investors in certain appropriate cases.
To begin, Stephan Schill in his paper "The Sixth Path: Reforming Investment Law from Within" sketches out a path for investment law reform that is based on an internal-system reconceptualization of investor-State arbitration as a form of public law-based judicial review. He argues that public law ideas and comparative public law methodology can be brought into investment arbitration in its present form, and suggests that arbitrators have an interest in conforming to these standards even in the absence of fundamental institutional reform.
In his paper "The Margin of Appreciation in International Investment Law", Julian Arato discusses the suitability of the margin of appreciation in the adjudication of investment disputes. The paper starts with the assessment that investment treaties say nothing about the appropriate standard of review and do not address whether States should be afforded any deference in their own assessment of their treaty obligations, or alternatively whether State action must be strictly reviewed. The paper further questions the suitability of the margin of appreciation and a unified a priori doctrine of deference. But it concludes instead that the desired certainty can be achieved only gradually, through judicial practice and dialogue over the medium to long term.
Frederic Sourgens suggests, in his paper "By Equal Contest of Arms: Jurisdictional Proof in Investor-State Arbitrations", that common criticisms of the ISDS system start from the wrong place, namely a focus on creating better formal international investment law rules. In his view, these critics do not address the legitimacy problem in investor-state arbitration, they (unwittingly, perhaps) are the legitimacy problem, because they lose sight of the purpose of dispute resolution at public international law, which at heart has always involved "a balancing act." He proposes that a balancing test be used to determine the jurisdiction of investor-state tribunals, and that doing so will ultimately moot complaints that investor-state arbitration lacks legitimacy.
Next, in their paper on "Interim Costs Orders: The Tribunal's Tool to Encourage Procedural Economy", Jeff Sullivan and David Ingle review the complaint that investment arbitration has become a slow and expensive process. They analyse the source of the problem, notably the fact that the system allows parties to bring frivolous claims and employ dilatory tactics because there is no effective deterrent for such conduct. Their paper argues that tribunals already have the tools necessary to encourage procedural economy by using interim costs orders to deter nefarious tactics while also balancing the two seemingly irreconcilable goals of due process and procedural economy.
In his paper on "Reforming the Approach to Costs in Investment Treaty Arbitration", Matthew Hodgson discusses the fact that despite the considerable costs of the investment arbitration process, the vast majority of investment tribunals devote just a few paragraphs of their award to the subject of cost allocation and many fail to enunciate a clear starting point for their analysis, or take divergent approaches. Drawing on a recent survey of costs in investment treaty arbitrations, this article argues for a more reasoned and consistent approach to costs. Establishing a default position as to costs would promote consistency and predictability across the field of treaty arbitration. Such an approach could be achieved by wording in bilateral investment treaties or a change to the ICSID rules to bring them into line with the UNCITRAL position; the author argues that the most appropriate default position is "loser pays."
In an insightful paper entitled "Distinguishing Investors from Exporters Under Investment Treaties", Mark Feldman makes two recommendations based on the NAFTA Chapter Eleven cases. He suggests first that when distinguishing investors from exporters, tribunals should look primarily to the capacity limitation, rather than the causation limitation (which lacks effectiveness) or the territorial limitation (which lacks flexibility). Second, he contends that when applying the capacity limitation, tribunals should be guided by the nature of a claimant's global business.
Stephan Wilske, in his paper entitled "Collective Action in Investment Arbitration to Enforce Small Claims Justice to the Deprived or Death Knell for the System of Investor-State Arbitration", discusses whether collective action can be a way to seek justice for small investors, or would rather be the "straw that breaks the camel's back" and damages the system of investment arbitration. After pointing out the challenges faced by small claimants in bringing an claim against a State, the author introduces some suggestions to overcome these challenges, including through collective action. The author concludes that the system is robust enough to deal with collective action and may find its own tools to make it fair and workable.
Finally, in his paper entitled "ICSID Treaty Counterclaims: Case Law and Treaty Evolution", Jose Antonio Rivas argues that future jurisprudential and investment treaty developments may shape expanded use of counterclaims by States in ICSID treaty cases. There may be voices of concern discouraging the practical use of counterclaims, and any development that would increase their use might create a disincentive to investors for launching claims in the first place. Yet, a considerable part of making counterclaims an operative alternative involves realizing that under certain lines of authority and existing investment arbitration instruments - including the ICSID Convention, the Rules of Arbitration and certain investment treaties - the tools for effective submission of counterclaims already exist.
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The Call for Papers that began this process, and the Special Issue that resulted from the enormous efforts of all involved, has not been an end in itself. We encourage the submission of more papers and more discussion to nourish the debate and support initiative by States and relevant institutions. In addition to further publications in TDM - whether through later upload to this Special Issue or as stand-alone articles in future issues - we would welcome sustained attention to these topics through online discussions, including a possible OGEMID dialogue that is in the works. We also believe there is no substitute for face-to-face discussion, and encourage the organization of live symposia on these important issues. It is our hope that this publication contributes to an ongoing constructive dialogue about ways to strengthen and refine the ISDS system to meet its many important goals, without losing the many advantages the system already offers over the alternatives that predated it.
 Michael Waidel et al. (eds.), The Backlash against Investment Arbitration: Perceptions and Reality (Kluwer Law International, 2010); David Gaukrodger and Kathryn Gordon, "Investor-State Dispute Settlement: A Scoping Paper for the Investment Policy Community", OECD Working Papers on International Investment, No.2012/3; K.P.Sauvant and F.Ortino, "Improving the International Investment Law and Policy Regime: Options for the Future", Seminar on Improving the International Investment Regime, Helsinki, 10 - 11 April 2013 (hosted by the Ministry of Foreign Affairs of Finland).
 2014 ICCA Congress (XXII) entitled "Legitimacy: Myths, Realities, Challenges"
 David Gaukrodger, "Investment Treaties as Corporate Law: Shareholder Claims and Issues of Consistency" (2013), a background paper for the initial Roundtable discussion of shareholder claims. OECD papers (2013).
 "Commission to consult European public on provisions in EU-US trade deal on investment and investor-state dispute settlement" - European Commission - IP/14/56 21/01/2014 europa.eu/rapid/press-release_IP-14-56_en.htm
 ICSID Review January 2014, forthcoming.
 Indeed, ICSID statistics show that 39% of cases brought before ICSID settle before a final award is rendered. See ICSID Caseload Statistics 2013-1 https://icsid.worldbank.org/ICSID/FrontServlet?requestType=ICSIDDocRH&actionVal=ShowDocument&CaseLoadStatistics=True&language=English41 - accessed 1 January 2014. See further R. Echandi & P.Kher "Can International Investor-State Disputes be Prevented? Evidence for Settlements in ICSID arbitration" ICSID Review, Forthcoming 2014.