UNCTAD’s review of ISDS decisions in 2019 highlights IIA reform issues27 Jan 2021
UNCTAD has published a "Review of ISDS Decisions in 2019: Selected IIA Reform Issues ” (IIA Issues Note, No. 1, January 2021).
This IIA Issues Note reviews publicly available decisions in investor–State dispute settlement (ISDS) cases with a focus on issues of relevance for treaty drafting and the reform of the international investment agreements (IIAs) regime. For policymakers and IIA negotiators, arbitral decisions can be a useful source for building knowledge on how IIA provisions work in practice and for identifying which areas are most in need of reform.
In 2019, arbitral tribunals rendered at least 71 substantive ISDS decisions. Thirty-nine of these decisions were publicly available. Decisions from 2019 touched upon important issues on the reform agenda for the IIA regime, including:
- Preserving the right to regulate (e.g. exclusions from treaty scope, interpretation of fair and equitable treatment, expropriation and umbrella clauses)
- Improving investment dispute settlement (e.g. ISDS scope, relationship with domestic proceedings, counterclaims)
- Ensuring investor responsibility (e.g. legality of investment under host State law)
The cases and issues highlighted in this Note were selected after a comprehensive case-by-case mapping of key issues addressed by ISDS tribunals in 2019.
Most decisions concerned cases based on old-generation IIAs signed in the 1990s or earlier. Policymakers and IIA negotiators may wish to consider the implications of these developments for treaty drafting, the development of future treaties as well as the modernization of existing ones.
UNCTAD’s next Annual IIA Conference, to be held at the World Investment Forum 2021, will focus on accelerating the reform of old-generation investment treaties based on options suggested in UNCTAD’s IIA Reform Accelerator. It will also build on the outcome of UNCTAD’s Virtual IIA Conference 2020.