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

OECD International Investment Working Paper No. 2012/2

58 Pages Posted: 10 Dec 2012

See all articles by Joachim Pohl

Joachim Pohl

Organization for Economic Co-Operation and Development (OECD) - Investment Division

Kekeletso Mashigo

Organization for Economic Co-Operation and Development (OECD)

Alexis Nohen

Organization for Economic Co-Operation and Development (OECD)

Date Written: November 1, 2012

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 characterizes 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, characterized by significantly more thorough ISDS regulation and pioneered by some countries, seems to spread increasingly in multilateral IIAs and more comprehensive treaties.

Keywords: foreign investment, international investment, international investment law, international investment agreements, bilateral investment treaties, international arbitration, dispute resolution, regulation

JEL Classification: F02, F21, F23, F53, K33, K41, N40, O38, P45, P48

Suggested Citation

Pohl, Joachim and Mashigo, Kekeletso and Nohen, Alexis, Dispute Settlement Provisions in International Investment Agreements: A Large Sample Survey (November 1, 2012). OECD International Investment Working Paper No. 2012/2. Available at SSRN: https://ssrn.com/abstract=2187254 or http://dx.doi.org/10.2139/ssrn.2187254

Joachim Pohl (Contact Author)

Organization for Economic Co-Operation and Development (OECD) - Investment Division ( email )

2 rue André Pascal
Paris, 75775
France

Kekeletso Mashigo

Organization for Economic Co-Operation and Development (OECD) ( email )

2 rue Andre Pascal
Paris Cedex 16, 75775
France

Alexis Nohen

Organization for Economic Co-Operation and Development (OECD) ( email )

2 rue Andre Pascal
Paris Cedex 16, 75775
France

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