{"id":477,"date":"2016-06-22T11:42:31","date_gmt":"2016-06-22T15:42:31","guid":{"rendered":"http:\/\/www.iisd.org\/toolkits\/sustainability-toolkit-for-trade-negotiators\/?page_id=477"},"modified":"2016-09-01T23:09:51","modified_gmt":"2016-09-02T03:09:51","slug":"5-5-2-improving-the-current-investor-state-arbitration-regime","status":"publish","type":"page","link":"https:\/\/www.iisd.org\/toolkits\/sustainability-toolkit-for-trade-negotiators\/5-investment-provisions\/5-5-preventing-and-resolving-investment-related-disputes\/5-5-2-improving-the-current-investor-state-arbitration-regime\/","title":{"rendered":"5.5.2 Improving the Current Investor\u2013State Arbitration Regime"},"content":{"rendered":"

One option for improving the existing regime of ISDS, and helping it work better for sustainable development outcomes, is ensuring transparency in proceedings. A significant step toward this goal is incorporating in the agreement the UNCITRAL Rules on Transparency in Treaty-based Investor\u2013State Arbitration<\/em><\/a> (UNICTRAL Transparency Rules) throughout the arbitral proceedings. This can be done in such a way that the provisions apply to all ISDS proceedings, even if conducted under rules other than UNCITRAL (e.g., International Centre for Settlement of Investment Disputes [ICSID]).<\/p>\n

Another option is including provisions on the possibility of introducing an appellate mechanism. Such provisions have appeared in several agreements but had not been implemented in any until the conclusion of the FTA between the EU and Vietnam<\/a> [EU-Vietnam FTA, Chapter 8, Section 3, article 13].34<\/sup><\/p>\n

Another possibility is strengthening the role of the treaty parties when disputes arise between investors and states in sensitive areas. Certain types of defence in an arbitration (e.g., invoking an exception for prudential measures) may trigger the need for a decision by the parties, or by a state-to-state tribunal, on whether the defence is valid. The investor\u2013state arbitration can only continue if they decide that it is not. A similar approach could be taken with respect to challenges to environmental measures.<\/p>\n

Finally, the parties could give host states the right to initiate a counterclaim against the investor, giving the state some ability to address the complaining investor\u2019s non-compliance with domestic law (or with the treaty, if it includes investor obligations). For example, in a challenge by the investor against the host state, the state could counterclaim in case of environmental damage caused by the investor.<\/p>\n","protected":false},"excerpt":{"rendered":"

One option for improving the existing regime of ISDS, and helping it work better for sustainable development outcomes, is ensuring transparency in proceedings. A significant step toward this goal is incorporating in the agreement the UNCITRAL Rules on Transparency in Treaty-based Investor\u2013State Arbitration (UNICTRAL Transparency Rules) throughout the arbitral proceedings. This can be done in… Read more »<\/a><\/p>\n","protected":false},"author":7,"featured_media":0,"parent":471,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"","meta":{"_acf_changed":false,"footnotes":"1"},"class_list":["post-477","page","type-page","status-publish","hentry"],"acf":[],"_links":{"self":[{"href":"https:\/\/www.iisd.org\/toolkits\/sustainability-toolkit-for-trade-negotiators\/wp-json\/wp\/v2\/pages\/477","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.iisd.org\/toolkits\/sustainability-toolkit-for-trade-negotiators\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/www.iisd.org\/toolkits\/sustainability-toolkit-for-trade-negotiators\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/www.iisd.org\/toolkits\/sustainability-toolkit-for-trade-negotiators\/wp-json\/wp\/v2\/users\/7"}],"replies":[{"embeddable":true,"href":"https:\/\/www.iisd.org\/toolkits\/sustainability-toolkit-for-trade-negotiators\/wp-json\/wp\/v2\/comments?post=477"}],"version-history":[{"count":0,"href":"https:\/\/www.iisd.org\/toolkits\/sustainability-toolkit-for-trade-negotiators\/wp-json\/wp\/v2\/pages\/477\/revisions"}],"up":[{"embeddable":true,"href":"https:\/\/www.iisd.org\/toolkits\/sustainability-toolkit-for-trade-negotiators\/wp-json\/wp\/v2\/pages\/471"}],"wp:attachment":[{"href":"https:\/\/www.iisd.org\/toolkits\/sustainability-toolkit-for-trade-negotiators\/wp-json\/wp\/v2\/media?parent=477"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}