The current system of international resolution of disputes between foreign investors and the states hosting their investments needs to undergo reforms. Both the host states and the investors realize that existing mechanism bears a number of risks, namely unexpected consequences from entering into international treaties on foreign investments (e.g. regulatory chill), lack of consistency both in the applicable rules of international law and in the dispute resolution, etc. In this article the author shows three possible options to reform the existing mechanism by distinguishing them depending on how radical they are. The palliative way of reforming suggests solving existing problems without changing the institute as such. The modernizing way suggests adding new elements to the existing model. The radical way of reforming offers a substitution of the existing system by other tools which are more up-to-date, and perhaps more efficient and objective for the resolution of investment disputes. This article is to be continues to deal with the trends of recent years in the area of resolution of disputes between host states and foreign investors.
About the author
Iliya Rachkov, Candidate of Legal Sciences, Associate Professor, International Law, MGIMO University.
Rachkov I. (2016) Reforma mezhdunarodno-pravovogo uregulirovaniya sporov mezhdu inostrannymi investorami i gosudarstvami [Reforming international resolution of disputes between foreign investors and host states]. Mezhdunarodnoe pravosudie, no.3 (19), pp.118–136. (in Russian).
Alvarez G.M., Blasikiewicz B., et al. (2016) A Response to the Criticism against ISDS by EFILA. Journal of International Arbitration, vol.33, no.1. p.1–36.
Beviglia-Zampetti A., Sauve P. (2007) International Investment. In: Sykes A.O., Guzman A. (eds.) Research Handbook in International Economic Law, London: Edgar Elder, pp.211–270.
Chen T.-F. (2015) Deterring Frivolous Challenges in Investor-State Dispute Settlement. Contemporary Asia Arbitration Journal, vol.8, no.1, pp.61–80.
Hepburn J., Peterson L.E. (2011) Newly unearthed jurisdictional ruling reveals that Cuba questioned whether Italian diplomatic protection claims fall under investment treaty’s state-to-state arbitration clause. Available at: http://www.iareporter.com/articles/newly-unearthed-jurisdictional-ruling-reveals-that-cuba-questioned-whether-italian-diplomatic-pro
tection-claims-fall-under-investment-treatys-state-to-state-arbitration-clause (accessed on 27.07.2016).
Huaqun Z. (2014) Balance, Sustainable Development and Integration: Innovative Path for BIT Practice. Journal of International Economic Law, vol.17, no.299, pp.299–332.
Lee J. (2015) Resolving Disputes of Treaty Shopping in International Investment Arbitration. Journal of International Dispute Settlement, vol.6, no.2, pp.355–379.
Lazem A., Bantekas I. (2015) The Treatment of Tax as Expropriation in International Investor-State Arbitration. Arbitration International 6 May, pp.1–46.
Miller S., Hicks G.N. (2015) Investor-State Dispute Settlement: A Reality Check: A Report of the CSIS Scholl Chair in International Business. Available at: https://csis-prod.s3.amazonaws.com/s3fs-public/legacy_files/files/publication/150116_Miller_InvestorStateDispute_Web.pdf (accessed on 27.07.2016).
Redfern A., Hunter M. (2004) Law and Practice of International Commercial Arbitration, 4th ed., London: Sweet & Maxwell.
Schill S.W. (2015) Reforming Investor-State Dispute Settlement (ISDS): Conceptual Framework and Options for the Way Forward. E15 Initiative. Geneva: International Centre for Trade and Sustainable Development (ICTSD) and World Economic Forum, p.8. Available at: http://www.e15initiative.org (accessed on 27.07.2016).
Sornarajah M. (2016) An International Investment Court: panacea or purgatory? Columbia FDI Perspectives, no.180, August 15.
Welsh N., Schneider A.K. (2013) The Thoughtful Integration of Mediation into Bilateral Investment Treaty Arbitration. Harvard Negotiation Law Review, vol.18, pp.71-144.
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