The Repudiation of Investor–State Arbitration and Subsequent Treaty Practice: The Resurgence of Qualified Investor–State Arbitration

(2016) 31(1) ICSID Review 194

UNSW Law Research Paper No. 17-64

25 Pages Posted: 12 Oct 2017

See all articles by Leon Trakman

Leon Trakman

University of New South Wales (UNSW) - Faculty of Law

David Musayelyan

University of New South Wales (UNSW)

Date Written: January 1, 2016

Abstract

This article contributes to the existing literature on investor–State arbitration (ISA) by analysing the subsequent treaty making practices of the States that pledged to abolish ISA. The article concludes that instead of rejecting ISA or withdrawing from the International Centre for Settlement of Investment Disputes (ICSID), these States are continuing to provide for ISA in their treaties. However, they are increasingly qualifying access to investor–State arbitration. Specifically, the study notes the increased presence of various provisions allowing State parties to vary from their treaty obligations. Thus, the latest treaties examined in this study resemble the first generation of bilateral investment treaties (BITs) in terms of their restrictiveness. While the first-generation treaties construed investment and investor rights in narrow language, the recent treaties of countries which initially rejected ISA have instead limited investor rights by emphasizing various exceptions to treaty obligations. However, of great significance, while all the agreements analysed qualify access to ISA, they differ significantly in their approaches to regulating arbitral proceedings. These divergent treaty practices present challenges to various ISA reform proposals.

Keywords: investor–State arbitration, ISA, International Centre for Settlement of Investment Disputes, ICSID, treaty obligations, bilateral investment treaties, BITs

Suggested Citation

Trakman, Leon and Musayelyan, David, The Repudiation of Investor–State Arbitration and Subsequent Treaty Practice: The Resurgence of Qualified Investor–State Arbitration (January 1, 2016). (2016) 31(1) ICSID Review 194, UNSW Law Research Paper No. 17-64, Available at SSRN: https://ssrn.com/abstract=3050287 or http://dx.doi.org/10.2139/ssrn.3050287

Leon Trakman (Contact Author)

University of New South Wales (UNSW) - Faculty of Law ( email )

Kensington, New South Wales 2052
Australia

David Musayelyan

University of New South Wales (UNSW) ( email )

Kensington
High St
Sydney, NSW 2052
Australia

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