Right of States to Regulate in Light of Investment Treaty Practice and Investor-State Arbitration (original) (raw)
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For the first time in the history of international investment law the interests of state parties, both developed and developing, are becoming approximated in the sense of their shared dissatisfaction with the drafting patterns on which the bulk of existing investment treaties are modelled. Faced with a growing number of investment claims and at the same time cognizant of the important gains bestowed by investment treaty instruments on their own businesses abroad, some governments were forced to adopt a long-term review of their investment treaty policies. Recently reformed treaty models feature a number of significant changes symbolising an almost paradigmatic even if inchoate shift in the perceptions of investment treaty law and its principal functions. However, what still remains unexplored is the existence of variation in the ways host states reassert control over international investment law. A significant number of states have so far refrained from any significant overhaul of their investment treaties. Others have attempted to reassert control over investment protection and dispute settlement through changes in domestic legal frameworks. Furthermore, existing scholarship has so far been preoccupied with patterns of state behaviour in the international scene, such as treaty reform, thus leaving unaddressed the reassertion by states of control over investment treaty law through changes in national laws and policies. The aim of this chapter is to analyse the hitherto less visible and underexplored patterns of state behaviour such as reticence (or selective adjustment), preservation of the status quo (or passivity), dispute prevention and domestic contestation (or grassroots resistance) of investment treaties and its ISDS mechanism.
International Review of Management and Business Research, 2014
IntroductionArbitration tribunals have occasionally rendered contradictory awards1 in investment arbitrations. These conflicts have raised urgent concern about the necessity of establishing appellate mechanism to harmonize the situation so as to achieve a consistent and coherence result facilitating predictability and consistency in international investment disputes. Conflicting awards based upon the same facts or identical worded provision in the treaty will create a threat to the international legitimate order and the continued existence of investment treaties. It is likely that investors will be advised to structure their investments in a manner that multi-dispute resolution mechanisms can be established through multiple investment treaties.The purpose of the paper is to review the recently proposed appellate mechanisms in international investment treaty arbitration and critically analyze the various objections to appellate mechanisms in the international investment sphere. It is...