Dispute Settlement Provisions in International Investment Agreements: A Large Sample Survey

Joachim Pohl, Kekeletso Mashigo and Alexis Nohen
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Joachim Pohl: OECD
Kekeletso Mashigo: OECD
Alexis Nohen: OECD

No 2012/2, OECD Working Papers on International Investment from OECD Publishing

Abstract: Investor-State dispute settlement mechanisms (ISDS) are an important component of most International Investment Agreements (IIAs) and have significant influence on how disputes between States and investors are resolved. This statistical survey of a large sample of 1,660 bilateral investment treaties (BITs) identifies the main parameters of ISDS regulation in BITs; traces their emergence, frequency and dissemination over time; and highlights past and recent country-specific treaty practice. The survey finds among other things that many countries define the procedural framework thinly compared to advanced domestic procedural frameworks, despite a broad trend toward greater regulation in treaties of parameters of ISDS. Many treaties offer foreign investors a range of procedural choices, such as a choice between arbitration fora. The survey also highlights the diversity that characterises the design of ISDS: over a thousand different combinations of rules regulating ISDS can be found in only 1,660 bilateral treaties –, with variation found both at editorial and substantial level. Differences in policy approaches between countries are the source of some of this variance, but it appears that much of it may not reflect differences in policy. The study also found little evidence of general convergence of approaches towards regulating ISDS in BITs, or indeed much development in the BIT negotiating practice of a number of countries. A different approach, characterised by significantly more thorough ISDS regulation and pioneered by some countries, seems to spread increasingly in multilateral IIAs and more comprehensive treaties.

Keywords: bilateral investment treaty; dispute resolution; foreign investment; international arbitration; international investment; international investment agreements; international investment law; regulation (search for similar items in EconPapers)
JEL-codes: F02 F21 F23 F53 K33 K41 N40 O38 P45 P48 (search for similar items in EconPapers)
Date: 2012-12-14
New Economics Papers: this item is included in nep-int
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