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

Author

Listed:
  • Joachim Pohl

    (OECD)

  • Kekeletso Mashigo

    (OECD)

  • Alexis Nohen

    (OECD)

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

Suggested Citation

  • Joachim Pohl & Kekeletso Mashigo & Alexis Nohen, 2012. "Dispute Settlement Provisions in International Investment Agreements: A Large Sample Survey," OECD Working Papers on International Investment 2012/2, OECD Publishing.
  • Handle: RePEc:oec:dafaaa:2012/2-en
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    File URL: http://dx.doi.org/10.1787/5k8xb71nf628-en
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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.

    More about this item

    Keywords

    bilateral investment treaty; dispute resolution; foreign investment; international arbitration; international investment; international investment agreements; international investment law; regulation;

    JEL classification:

    • F02 - International Economics - - General - - - International Economic Order and Integration
    • F21 - International Economics - - International Factor Movements and International Business - - - International Investment; Long-Term Capital Movements
    • F23 - International Economics - - International Factor Movements and International Business - - - Multinational Firms; International Business
    • F53 - International Economics - - International Relations, National Security, and International Political Economy - - - International Agreements and Observance; International Organizations
    • K33 - Law and Economics - - Other Substantive Areas of Law - - - International Law
    • K41 - Law and Economics - - Legal Procedure, the Legal System, and Illegal Behavior - - - Litigation Process
    • N40 - Economic History - - Government, War, Law, International Relations, and Regulation - - - General, International, or Comparative
    • O38 - Economic Development, Innovation, Technological Change, and Growth - - Innovation; Research and Development; Technological Change; Intellectual Property Rights - - - Government Policy
    • P45 - Economic Systems - - Other Economic Systems - - - International Linkages
    • P48 - Economic Systems - - Other Economic Systems - - - Political Economy; Legal Institutions; Property Rights; Natural Resources; Energy; Environment; Regional Studies

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