Friday, June 4, 2010

Encapsulating the Investor-State Dispute Settlement (ISDS) Regime of 2009

(The following post is contributed by Rohan Bagai, who is a corporate lawyer at one of the leading law firms in India. He holds a Master of Laws (LL.M.) degree from New York University School of Law (NYU), New York with a specialization in corporate laws)

The American Society of International Law (ASIL) recently posted “The United Nations Conference on Trade and Development (UNCTAD) report on the ‘Latest Developments in Investor-State Dispute Settlement’” [IIA Issues Note No.1 (2010)] (the “Report”) in its electronic publication, ‘International Law in Brief’ (ILIB).

The Report recapitulates the developments for the year 2009 as regards the ‘treaty based investor-State dispute settlement’ cases filed under International Investment Agreements (IIAs), recording the number of cases filed, the respondent countries i.e. the nations that have faced investment treaty arbitrations, the institutions/venues where the claims were initiated, the count of the decisions/awards rendered etc.

The Report sketches out noteworthy arbitral awards rendered in the year 2009 on substantive issues relating, inter alia, to the definition of ‘investment’, most favored nation (MFN) treatment, expropriation, compensation, fair and equitable treatment and full protection and security. In addition, it addresses procedural issues related to rules and standards in arbitration, which include burden of proof, annulment mechanism, challenge to arbitrators, damages, arbitration costs etc.

Given the deviating interpretations and distinct approaches followed by tribunals in a plethora of decisions adjudicated in the year 2009, diverging (and sometimes conflicting) awards have been on a rise. Besides, there is an emerging trend of dissenting opinions by one of the members of the tribunal ensuing uncertainty in the IIA regime.

The Report further observes that there have been earnest attempts made by IIA envoys and negotiators across the world in order to tackle concerns relating to high arbitration costs, lack of transparency, public inquiry etc. Some countries have even set in motion the process of revising the controversial treaty provisions with a view to clarify the scope of these provisions and ensure a more coherent and consistent interpretation.

All in all, the Report is an invaluable resource for investment law practitioners as it provides an all-inclusive appraisal of the significant decisions/awards of 2009.

- Rohan Bagai

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