Investment Arbitration: Learning from Experience
Investment Arbitration: Learning from Experience
The concept of sustainable development only provides broad guidance as to the design of investor–State dispute settlement (ISDS). The need to strike a balance between competing concerns suggests that ISDS should not be biased in favour of the protection of foreign investment. In addition, greater transparency and public participation will also ensure that competing concerns are taken into account, and will result in higher quality decisions. States have now had a significant amount of experience with ISDS. The fact that, notwithstanding this experience, they continue to enter into investment treaties, which provide for ISDS, suggests that the system is not fundamentally flawed. Instead, building on this experience, States are now negotiating more detailed treaties that address the deficiencies which practice has revealed. While there may be benefits in proposals such as a permanent investment court, if such a court is not appropriately designed, it may do more harm than good.
Keywords: investor–State dispute settlement, bias, UNCITRAL Transparency Rules, transparency, appellate body, inconsistent decisions, exhaustion of local remedies
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