The Return of State Remedies in Investor-State Dispute Settlement: Trends in Developing Countries
19 Pages Posted: 10 May 2018
Date Written: 2018
This Article explores the variety of strategies deployed by developing countries to bypass traditional investor-state arbitration and assesses the limitations and drawbacks of these efforts. From giving preeminence to domestic courts of the host state to the resurgence of diplomatic protection and other state-based processes for solving investment disputes, these tactics are reminiscent of the pre-bilateral investment treaty era, where states played a more prominent role in foreign investment dispute resolution. The main proponents of such moves are Brazil, India, UNASUR, South Africa, and Indonesia. After an overview of initiatives from these countries, this Article analyzes the hurdles and limitations of state-centric dispute resolution. It concludes that relying purely on state remedies is unlikely to fully address investor-state dispute resolution, although it may increase the pressure to critically reassess the current investor-state arbitration system. Ultimately, this Article frames the return to state-controlled dispute settlement mechanisms as part of a broader trend to reassert host states’ control of foreign investment policy.
Keywords: arbitration, dispute resolution, investor-state, foreign investment
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