OECD Working Papers on International Investment

1815-1957 (online)
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Selected studies on international investment and investment policy prepared for use within the OECD. They address such issues as investment agreements, dispute settlement, fair and equitable treatment, most favored nation treatment, and corruption.

Investor-State Dispute Settlement

A Scoping Paper for the Investment Policy Community You or your institution have access to this content

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David Gaukrodger1, Kathryn Gordon
Author Affiliations
  • 1: OECD, France

31 Dec 2012
Bibliographic information

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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.
third party financing, enforcement of arbitration awards, international economic law, bilateral investment treaties, international investment law, forum shopping, treaty shopping, ECHR dispute settlement, third party funding, non-pecuniary remedies, access to justice, international investment agreements, dispute resolution, consistency of arbitral decisions, international arbitration, investment arbitrators, comparative law, international investment, level playing field, competitive neutrality, selection and regulation of arbitrators, litigation finance, judicial review, WTO dispute settlement, arbitrators, comparative remedies, dispute settlement, investor-state dispute settlement, arbitration costs, domestic impact of investment law, investment law and development, investment treaties, foreign investment, remedies
JEL Classification:
  • D61: Microeconomics / Welfare Economics / Allocative Efficiency ; Cost–Benefit Analysis
  • D63: Microeconomics / Welfare Economics / Equity, Justice, Inequality, and Other Normative Criteria and Measurement
  • D82: Microeconomics / Information, Knowledge, and Uncertainty / Asymmetric and Private Information ; Mechanism Design
  • 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
  • F55: International Economics / International Relations, National Security, and International Political Economy / International Institutional Arrangements
  • F63: International Economics / Economic Impacts of Globalization / Economic Development
  • G23: Financial Economics / Financial Institutions and Services / Non-bank Financial Institutions ; Financial Instruments ; Institutional Investors
  • G28: Financial Economics / Financial Institutions and Services / Government Policy and Regulation
  • K23: Law and Economics / Regulation and Business Law / Regulated Industries and Administrative Law
  • 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
  • L84: Industrial Organization / Industry Studies: Services / Personal, Professional, and Business Services
  • P45: Economic Systems / Other Economic Systems / International Trade, Finance, Investment, and Aid
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