Investor-State Dispute Settlement: A Scoping Paper for the Investment Policy Community

David Gaukrodger and Kathryn Gordon
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David Gaukrodger: OECD
Kathryn Gordon: OECD

No 2012/3, OECD Working Papers on International Investment from OECD Publishing

Abstract: Governments are facing an increasing number of arbitration claims by foreign investors relating to important public policies or seeking substantial damages, and many governments are taking a greater joint interest in how such cases are resolved in investor-state dispute settlement (ISDS). This scoping paper has supported inter-governmental dialogue about ISDS at several OECD-hosted investment Roundtable meetings. Part I compares ISDS with other international and domestic processes for resolving disputes including the WTO and European Court of Human Rights, and considers how ISDS may affect domestic policy making processes. Part II examines eight current and emerging issues in ISDS: (i) investors’ access to justice; (ii) the costs of ISDS cases; (iii) remedies for foreign investors under investment treaties and their possible impact on a level playing field for domestic and foreign investors; (iv) the enforcement and execution of ISDS awards; (v) third party financing of ISDS; (vi) the characteristics, selection and regulation of arbitrators in ISDS; (vii) forum shopping and treaty shopping by investors; and (viii) the question of the consistency of decision-making in ISDS. Part III outlines key findings from a statistical survey of ISDS provisions in 1,660 bilateral investment treaties. Public comment on this paper, including 46 investment policy questions (as outlined in the paper), was obtained in May-July 2012 and is available on the OECD website.

Keywords: access to justice; arbitration costs; arbitrators; bilateral investment treaties; comparative law; comparative remedies; competitive neutrality; consistency of arbitral decisions; dispute resolution; dispute settlement; domestic impact of investment law; ECHR dispute settlement; enforcement of arbitration awards; foreign investment; forum shopping; treaty shopping; international arbitration; international economic law; international investment; international investment agreements; international investment law; investment arbitrators; investment law and development; investment treaties; investor-state dispute settlement; judicial review; level playing field; litigation finance; non-pecuniary remedies; remedies; selection and regulation of arbitrators; third party financing; third party funding; WTO dispute settlement (search for similar items in EconPapers)
JEL-codes: D61 D63 D82 F02 F21 F23 F53 F55 F63 G23 G28 K23 K33 K41 L84 P45 (search for similar items in EconPapers)
Date: 2012-12-31
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