Investor-State Dispute Settlement (ISDS) System

Investment Policy Brief 15, March 2019

UNCITRAL Working Group III: Can Reforming Procedures Rebalance Investor Rights and Obligations?

The work of the United Nations Commission on International Trade Law (UNCITRAL) provides an opportunity to rebalance the international investment regime – but only if the full gamut of key issues are identified. Requiring investors to uphold standards of responsible business conduct (RBC) is largely a function of substantive rights and obligations, but it also presents procedural dimensions that fall within the purview of the UNCITRAL process. This policy brief explores the issues and discusses possible options for reform.

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Investment Policy Brief 14, March 2019

Building a Mirage: The Effectiveness of Tax Carve-out Provisions in International Investment Agreements

The present policy brief analyses the language of taxation carve-out provisions incorporated in International Investment Agreements (IIAs), and its effectiveness with regards to restricting the protection and dispute settlement provisions of IIAs only to non-tax-related claims. It illustrates that even in cases where such carve-out provisions have been incorporated into IIAs, the broad language and lack of clarity in the drafting of such provisions have effectively allowed Investor-State Dispute Settlement (ISDS) tribunals to scrutinize tax measures adopted by States, and even determine that such measures resulted in a breach of State’s obligations under the agreement. It makes recommendations on how States could effectively implement such carve-outs when negotiating, reforming or drafting new international investment agreements.

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Investment Policy Brief 13, December 2018

IP Licence, Trademarks and ISDS: Bridgestone v. Panama

Can an intellectual property right or a license authorizing its use be deemed an ‘investment’ under bilateral investment treaties? This policy brief discusses the arguments submitted by the parties in the Bridgestone Licensing Services, Inc. and  Bridgestone Americas, Inc. v. Republic of Panama case on questions regarding a trademark license agreement. Bridgestone Licensing Services, Inc. (BSLS) and Bridgestone Americas, Inc. (BSAM) together initiated arbitration proceedings on the grounds that Panama’s Supreme Court decision was unjust and arbitrary, violated Panama’s obligations under the United States-Panama Trade Promotion Agreement (TPA),  expropriated their investments, and violated the requirement of fair and equitable treatment (FET) to BSLS’s and BSAM’s investments.

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Investment Policy Brief 12, December 2018

Investor-State Dispute Settlement: An Anachronism Whose Time Has Gone

Investor-State Dispute Settlement (ISDS) – a mechanism that allows foreign investors to bring claims against host governments to an international arbitral tribunal – is a relic that should be abolished. Its alleged benefits have not materialized and its costs – monetary and other – can represent a formidable obstacle to good economic governance. We recommend policymakers to terminate ISDS provisions in existing agreements and eschew them in future trade and investment treaties.

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SC WIF 2018 Side Event, October 2018

Title:                             Reforms and Alternatives for the Future of the International Investment Treaty Regime; Views for the Way Forward

Date and Time:           Tuesday, 23 October 2018, 12:30-14:30

Venue:                         Room XXII of the Palais des Nations

Organizer:                   The South Centre

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Investment Policy Brief 11, May 2018

The Cooperation and Facilitation Investment Agreement (CFIA) in the context of the discussions on the reform of the ISDS system

The Brazilian Cooperation and Facilitation Investment Agreement (CFIA) model establishes an alternative approach to dispute resolution. This does not mean, however, that the CFIA is silent with regards to possible disputes arising from breaches to the agreement and/or claims by investors. Based on the premise that the investment regime between two or more countries is a positive-sum game, in which all parties involved win, the CFIA presents an approach based on the prevention of disputes.

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