It is well know that BITs have always been the main influential element within the IIAs network for decades ,till the regionalization trend started to gain momentum during the last few years in many parts of the globe, as a possible solution to the negative aspects of an emerging complicated BITs network similar to a "spaghetti bowl" as described by UNCTAD .
On the other hand ,we have had many Arab countries that are linked to each other by many BITs ,inducing ISDS clauses providing the Arab investor with the right of to resort all international arbitration foras, but actually not well utilized. This refers to many reasons including the non promotion of those legal tools between the Arab business community ,the inaccurate and inconsistent language of some BITs ,or even the non entry into force of other category .
However, the Arab Spring repercussions on increasing treaty -based disputes has helped in granting the kiss of life to many Arab BITs ,as a tool to raise a claims against some Arab spring countries especially before ICSID .
In addition ,the revolutionary measures in those countries has stimulated the desire to make use of the existing regional IIAs ,especially the two signed on the Arab and Islamic levels ,to profit from its ISDS clauses that provide the investor with the right to settle his dispute through conciliation or arbitration without prior consent or through international litigation, as in the case of the Arab Investment Court established by the Unified Agreement for the Investment of Arab Capital in the Arab States.

Nevertheless, these old regional IIAs comprising Arab countries still need much efforts to be revamped before being ready as a viable resort, especially that practical evidences signify the lack of efficiency of the tools established by them ,which is clear with the Arab Investment Court that didn't issue except one decision since its establishment under the 1980 agreement .

Hence ,there is a real need to develop the substantive content of these regional IIAs in order to reflect the new developments that tackled the international investment rule making during recent years ,since these agreements were built mainly on negotiations compromises rather than mutual economic interests and real balance between the investor and the host state .These deficiencies are also clear in the lack of an accurate definitions of the covered "investments" and "investors" ,that could reflect the new trends in defining them in IIAs ,resulting in a disadvantageous position of both the investor and the host state .

However, this might not be an easy mission ,in light of the different economic interests between Arab countries including the oil/capital exporting and non oil/capital exporting categories ,unless realizing the mutual benefits that could be achieved through balancing investors protection and investment liberalization on one side and the admitting the right of the host state to retain the policy space of attain its national objectives on the other side .Besides, there is a need to revamp the ISDS mechanisms established by these regional IIAs through asserting on the important role of ADR mechanisms before resorting to national or international litigation and arbitration. Finally, there is also a need for reforming and activating the Arab Investment Court as a tool that could serve both the Arab investor and the host state ,unlike the case in international arbitration foras which actually serves mainly the investor's interests, even in those cases where the investor violates his contractual commitments or the laws and regulations of the host state .

As rightly indicated by Dr. Walid Ben Hamida, the desire of post-revolution governments to re-design their countries’ investment regimes in the pursuit of sustainable development is legitimate, and could be acted upon by the newly elected authorities. This is of high significance given that the substantive amounts of FDI attracted by Arab countries in the last decades often did not achieve a positive development and socio-economic contribution. Within this context, the regulatory flexibility for Arab governments to rethink their national and regional investment policies and redirect them to serve rights-based development strategies is essential.

In terms of regional investment agreements, such as the Unified Agreement for the Investment of Arab Capital in the Arab States, there is a need to revisit the rules set by the Agreement with the vision and objectives of (1) overcoming the limitations and shortcomings of a model that presents the protection of the investors as an end by itself and then (2) making the Agreement a viable efficient resort/ alternative to bilateral investment treaties (BITs) between Arab countries that are modeled to primarily serve the investor’s interests.

Within this context, the vision behind a regional investment agreement among Arab countries should extend to a model that advances a development-oriented investment policy, public interests, and democratic processes, without subordinating the rights of the investors. Such a policy is expected to ensure that investors do not challenge public interest policies and regulations, and is expected to enhance investors’ engagement with long-term productive investments, oriented to promoting growth and employment generation. Furthermore, it is expected to accommodate the need for policy space to regulate for developmental purposes, allowing for rules that uphold obligations of investors in regard to labor rights, laws that protect the environment and consumers as well as local communities’ rights, and knowledge and technology development.

Accordingly, governments in the region need to address the high concerns as well as evidence experienced in various regions of the world on the impact of the model of investor-state dispute settlement (ISDS) on the fundamental ‘right to regulate’ on behalf of public interest and for development. In a position statement released by over thirty renowned academics in 2010, it was stressed that the model of investor –state arbitration “…poses a serious threat to democratic choice and the capacity of governments to act in the public interest by way of innovative policy-making in response to changing social, economic, and environmental conditions”.

Arab countries have not been far from scrutiny under ISDS; indeed Egypt is among the countries appearing most frequently as a respondent under ICSID, just after Argentina and Venezuela (source: http://kluwerarbitrationblog.com/blog/2012/10/25/icsid-curious-facts/; by Inna Uchkunova, International Moot Court Competition Association (IMCCA).

It is important to note that, several countries, developed and developing, have undertaken steps to address the challenges and threats posed by the model of investment rules skewed solely to protect the investor. For example, Australia opposed the inclusion of investor -state dispute settlement in the Australia-US FTA and in the Trans-Pacific Partnership (TPP) Agreement due to concerns about the way it would limit their ability to regulate. South Africa initiated a review of its Bilateral Investment Treaty Policy Framework when its impact on national policy space became apparent.

Options for qualifying the inclusion of ISDS, or refraining from offering ISDS in an agreement, as well as clarifying the scope of the substantive clauses and its application under the regional investment agreements, should be discussed with the view of respecting policy space for development. This is a core challenge in the overall task of revisiting investment policy frameworks in the Arab countries.

Dear Walid,

I do not have the text at hand, but my recollection is that the dispute settlement provisions are more complicated than just the single sub-section you quote above. My view at the time of reading it is that consent is in fact required, prior to the point in the process that you quote in Art 17.2. I think it would be useful if all the related provisions were quoted before endorsing the conclusion that no consent is required in the process. Unfortunately, the recent tribunal decision on this issue has been reported on but is not public, a subject in itself related to the two previous comments.

best,
Howie

I have posted below the full text of the dispute settlement provision in the OIC. Unlike the conclusion of Prof. Walid, it seems to me that case-by-case agreement to dispute settlement is patently required by this text. While a failure of the conciliation process set out triggers a right to arbitration for either party (para 17.2(a) that Prof Walid quotes), entry into the conciliation process itself expressly and patently requires consent of both disputing parties. Absent such express consent, which requires a statement of the dispute by both parties, there is no other entry point into the dispute settlement system. Arbitration is only available if conciliation fails and conciliation is only available if both sides agree in writing. Conciliation and arbitration are seen as one continued dispute settlement process, not two distinct processes with separate entry points. It is a logical and internally complete process.

Sadly, it appears the decisions Prof. Walid refers to remain secret and unreviewable against what seems to be the clear text of the treaty. The text follows below.

Best,
Howie

Article 17
1. Until an Organ for the settlement of disputes arising under the Agreement is established, disputes that may arise shall be entitled through conciliation or arbitration in accordance with the following rules and procedures:
1. Conciliation
a) In case the parties to the dispute agree on conciliation, the agreement shall include a description of the dispute, the claims of the parties to the dispute and the name of the conciliator whom they have chosen. The parties concerned may request the Secretary General to choose the conciliator. The General Secretariat shall forward to the conciliator a copy of the conciliation agreement so that he may assume his duties.
b) The task of the conciliator shall be confined to bringing the different view points closer and making proposals which may lead to a solution that may be acceptable to the parties concerned. The conciliator shall, within the period assigned for the completion of his task, submit a report thereon to be communicated to the parties concerned. This report shall have no legal authority before a court should the dispute be referred to it.
2. Arbitration
a) If the two parties to the dispute do not reach an agreement as a result of their resort to conciliation, or if the conciliator is unable to issue his report within the prescribed period, or if the two parties do not accept the solutions proposed therein, then each party has the right to resort to the Arbitration Tribunal for a final decision on the dispute.