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

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  • David Gaukrodger
  • Kathryn Gordon
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    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.

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    File URL: http://dx.doi.org/10.1787/5k46b1r85j6f-en
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    Bibliographic Info

    Paper provided by OECD Publishing in its series OECD Working Papers on International Investment with number 2012/3.

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    Date of creation: 31 Dec 2012
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    Handle: RePEc:oec:dafaaa:2012/3-en

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    Related research

    Keywords: foreign investment; international investment law; international investment; dispute settlement; international arbitration; international economic law; comparative law; WTO dispute settlement; ECHR dispute settlement; enforcement of arbitration awards; arbitrators; investment arbitrators; selection and regulation of arbitrators; domestic impact of investment law; arbitration costs; level playing field; judicial review; forum shopping; treaty shopping; investment treaties; litigation finance; third party financing; third party funding; remedies; competitive neutrality; international investment agreements; dispute resolution; investor-state dispute settlement; investment law and development; access to justice; non-pecuniary remedies; comparative remedies; consistency of arbitral decisions; bilateral investment treaties;

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    Cited by:
    1. Fritz Breuss, 2014. "TTIP and its Effects on Austria. A Critical Literature Survey," WIFO Working Papers 468, WIFO.

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