UNCTAD has now published a “Review of ISDS Decisions in 2018: Selected IIA Reform Issues” (IIA Issues Note, No. 4, July 2019).
This note reviews publicly available decisions in investor–State dispute settlement (ISDS) cases with a focus on cases and issues of relevance for treaty drafting and the reform of international investment agreements (IIAs). For policymakers, arbitral decisions can be a useful source for learning how IIA provisions work in practice and which areas are most in need of improvement.
In 2018, arbitral tribunals rendered at least 50 substantive ISDS decisions. Twenty-nine of these decisions were publicly available as of January 2019.
The decisions touched upon many IIA reform topics, including:
– Preserving the right to regulate (e.g. exclusions from treaty scope, interpretation of fair and equitable treatment, expropriation and umbrella clauses)
– Improving investment dispute settlement (e.g. limitation periods for bringing ISDS claims, local litigation requirements as a prerequisite to arbitration, counterclaims)
– Ensuring investor responsibility (e.g. legality of investment under host State law)
The cases and issues highlighted in this note were selected after a comprehensive case-by-case mapping of principal issues addressed by ISDS tribunals in 2018.
Most decisions were based on old-generation treaties signed in the 1990s or earlier. Policymakers may wish to consider the implications of these decisions for the drafting of future treaties and the modernization of existing ones.
UNCTAD’s next High-level IIA Conference, to be held in November 2019, will offer an opportunity to take stock of IIA reform progress and lessons learned. The High-level IIA Conference 2019 will aim to pave the way for further inclusive, transparent and synchronized IIA reform processes in the pursuit of sustainable development.