1887

OECD Working Papers on International Investment

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.

English

Investor-State Dispute Settlement

A Scoping Paper for the Investment Policy Community

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.

English

Keywords: selection and regulation of arbitrators, dispute resolution, foreign investment, WTO dispute settlement, dispute settlement, investment law and development, litigation finance, bilateral investment treaties, level playing field, third party funding, investor-state dispute settlement, arbitrators, comparative law, domestic impact of investment law, comparative remedies, international economic law, consistency of arbitral decisions, investment treaties, judicial review, non-pecuniary remedies, third party financing, enforcement of arbitration awards, competitive neutrality, investment arbitrators, ECHR dispute settlement, international investment agreements, international investment law, international arbitration, arbitration costs, remedies, forum shopping, treaty shopping, international investment, access to justice
JEL: F63: International Economics / Economic Impacts of Globalization / Economic Impacts of Globalization: Economic Development; D63: Microeconomics / Welfare Economics / Equity, Justice, Inequality, and Other Normative Criteria and Measurement; K41: Law and Economics / Legal Procedure, the Legal System, and Illegal Behavior / Litigation Process; F23: International Economics / International Factor Movements and International Business / Multinational Firms; International Business; K33: Law and Economics / Other Substantive Areas of Law / International Law; F21: International Economics / International Factor Movements and International Business / International Investment; Long-term Capital Movements; F55: International Economics / International Relations, National Security, and International Political Economy / International Institutional Arrangements; L84: Industrial Organization / Industry Studies: Services / Personal, Professional, and Business Services; G28: Financial Economics / Financial Institutions and Services / Financial Institutions and Services: Government Policy and Regulation; F53: International Economics / International Relations, National Security, and International Political Economy / International Agreements and Observance; International Organizations; K23: Law and Economics / Regulation and Business Law / Regulated Industries and Administrative Law; G23: Financial Economics / Financial Institutions and Services / Pension Funds; Non-bank Financial Institutions; Financial Instruments; Institutional Investors; D61: Microeconomics / Welfare Economics / Allocative Efficiency; Cost-Benefit Analysis; F02: International Economics / General / International Economic Order and Integration; P45: Economic Systems / Other Economic Systems / Other Economic Systems: International Trade, Finance, Investment and Aid; D82: Microeconomics / Information, Knowledge, and Uncertainty / Asymmetric and Private Information; Mechanism Design
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