Published 17 June 2014
The following papers have been added to TDM 1 (2014) - Reform of Investor-State Dispute Settlement: In Search of a Roadmap - June 2014
Search of a Model for the Reform of International Investment Dispute Resolution:
an Analysis of Existing International and Regional Dispute Settlement
by Dr. Nicolette Butler, University of Manchester
[Addendum June 2014] Presently, the treaty-based system of investor-state dispute settlement (ISDS) is encountering unprecedented scrutiny. It is widely criticised for a number of reasons, including a lack of transparency, a proliferation of conflicting decisions, arbitrators who lack impartiality, and ever increasing delays/costs. Accordingly, there have been various calls for the reform of ISDS. Numerous reforms have been proposed, including the introduction of an appeals facility and/or the creation of a dedicated world investment court. So far, all such proposals have failed to be introduced. This inaction when it comes to reform is probably due to a lack of basic consensus about the nature of reform that should be introduced, and, furthermore presumably because the implementation of any reform would be a huge task to undertake. The aim of this paper is to step away from the relatively stale debate surrounding the merits of the various individual proposals for reform. Instead, this paper will examine a number of international and regional dispute settlement mechanisms to consider whether any of them may serve as a model for international investment dispute settlement. If a suitable model could be found, reforms could be implemented more quickly and easily, using said model as a blue print.
You can find the paper here: www.transnational-dispute-management.com/article.asp?key=2101
The increasing number of investor-state disputes has, particularly in the recent period of economic crisis, created a significant burden on host countries, both developed and developing ones. For developing countries, such a burden is often multiplied due to their limited resources and experience. Many developing countries, after a long "honeymoon" with foreign investors, have been re-considering the pros and cons of the investor-state dispute settlement mechanism and have become more cautious on their negotiations of bilateral investment treaties or investment chapters in free trade agreements. Through the experience of Vietnam, this paper discusses challenges and difficulties faced by developing countries in dealing with investor-state disputes. By examining the Vietnamese network of investment treaties, domestic laws and regulations as well as cooperation and coordination mechanism for investor-state dispute settlement and prevention, and three publicly available treaty-based cases in which Vietnam has been respondent, the paper identifies relevant drawbacks and concerns. It then proposes options and features of treaty language for a gradual but systematic re-negotiation of investment treaties, harmonization of investment rules and policies, and improvement of cooperation and coordination mechanisms for investor-state dispute settlement and prevention. In terms of regional effort in the context of the establishment of the ASEAN Economic Community in 2015, it suggests setting up an ASEAN advisory centre for investor-state dispute settlement. This paper presents 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.
You can find the paper here: www.transnational-dispute-management.com/article.asp?key=2041