Abstract
Host States and State-State Investment Arbitration: Strategies and Challenges
Highlights
O artigo pretende discutir se a arbitragem Estado-Estado em matéria de investimentos internacionais é uma estratégia para os Estados anfitriões
Considering an express delegation of interpretive powers by the parties to the State-State tribunals,34 few would deny that a previous State-State arbitration decision, which interprets a specific provision in a treaty, should be, at least, highly persuasive to future investor-State tribunals dealing with the same subject matter
The article concludes that the possibility of State-State3 arbitration in foreign investments (SSIA) is neither a backlash nor a more effective strategy compared to investor-state arbitration (ISA)
Summary
In this connection the two Contracting Parties hereby agree to enter into direct objective negotiations to reach such settlement. It is widely recognised that the introduction of ISA has substituted to a large extent the recourse to diplomatic protection.8 This means that host States have been directly challenged by investors and home States have seen their role in arbitration progressively diminished. In the terms of the provision, both treaty parties can submit the request for arbitration when an issue related to the interpretation or application of their treaty arises This may arguably take place even if there is a pending arbitration brought by an investor against a host State. The focus of this article is on how host States could effectively resort to SSIA as a defensive strategy and on what challenges they would face
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