Dear Colleagues,
It is my pleasure to share with you UNCTAD's
most recent IIA Issues Note,
which reviews developments in investor-State dispute settlement (ISDS).
Highlights
- A record high of 70 ISDS cases were
filed in 2015. The overall number of publicly known ISDS claims reached
696.
- By the end of 2015, a total of 444 ISDS
proceedings have been concluded, with 36 per cent of cases decided in favour
of the State, 26 per cent in favour of the investor and 26 per cent of
cases settled.
- Following the recent trend, a high share
of new cases in 2015 (about 40 per cent) were brought against developed
countries, including many cases by European investors against European
Union member States.
- The majority of new cases invoked bilateral
investment treaties (BITs), most of them dating back to the 1990s. In about
one third of all cases last year foreign investors relied upon the Energy
Charter Treaty, which by now is the most frequently invoked treaty (87
cases), followed by the North American Free Trade Agreement (56 cases),
and the Argentina–United States BIT (20 cases).
- State conduct that was most frequently
challenged by investors in 2015 included legislative reforms in
the renewable energy sector, alleged direct expropriations of investments,
alleged discriminatory treatment, and revocation or denial of licences
or permits.
- Newly filed cases include, among others,
claims related to events in Crimea, a mass claim arising out of the Eurozone
crisis, a case concerning the prohibition of gaming, a first-ever claim
invoking the WTO General Agreement on Trade in Services, and several tax-related
disputes.
- In 2015, ISDS tribunals rendered at
least 51 decisions, of which 31 are in the public domain. Most of the public
decisions on jurisdiction were decided in favour of the State, while the
majority of those on merits ended in favour of the investor.
- Arbitral decisions adopted in 2015 touch
upon a number of important legal issues concerning the scope of treaty
coverage, the conditions for bringing ISDS claims, the meaning of substantive
treaty protections, the calculation of compensation and others. On some
issues, tribunals followed previous decisions, while on some other issues
they adopted approaches that departed from earlier decisions.
- Some of the prominent decisions rendered
in 2015 concern investor nationality, ownership and control. This topic
– including approaches, implications and policy challenges – receives
in-depth coverage in UNCTAD’s World Investment Report 2016 scheduled to
be launched on 21 June.
The IIA
Conference at UNCTAD’s World
Investment Forum 2016, taking
place on 19 July 2016 in Nairobi, Kenya, offers the opportunity to discuss
key and emerging IIA issues.
Please visit UNCTAD's Investment
Policy Hub to learn more about
the latest investment trends and policy developments. Key information on
each of the 696 ISDS cases is available on UNCTAD's ISDS
Navigator, a comprehensive,
user-friendly and free-of-charge database of treaty-based international
arbitrations between investors and States.
With best regards,
James Zhan
Director, Investment and Enterprise
Head, World Investment Report team
UNCTAD
Palais des Nations, Geneva
Tel: 41229175760
www.unctad.org/diae
www.worldinvestmentreport.org
