Abstract
The last 30 years in the history of international investment law witnessed the emergence of investor-state dispute settlement (ISDS) as the definitive method for the resolution of investment disputes, and the expanding role of the investor in the same. Investment dispute settlement has become largely synonymous with a system that involves an investor, often private entity, in international arbitration against its host state. States, in this same setting, are relegated to the role of respondent. But despite the predominant role of the investor, some mechanisms involving both states (host state and home state of the investor) do exist. Some of these mechanisms, such as state-state dispute settlement and binding interpretations, have been used for years. Others, such as national contact points or ombudsmen, are newer. As investment law enters a new era of reflection with the functioning of the current ISDS machinery at its centre, some of the efforts at reforming international investment law focus on enhancing the role of the state in investment dispute settlement and add to the popularity of some of these mechanisms. The article critically explores three ‘soft’ non-adjudicatory approaches to the prevention or resolution of investment disputes that belong to the sphere of state-to-state procedures and have gained currency in recent years: joint interpretive statements, including subsequent agreement or practice under general public international law and clarifications through diplomatic notes and periodic review of treaty content; filter mechanisms; and focal points or ombudsmen.
Highlights
Os últimos 30 anos na história do direito de investimento internacional testemunharam o surgimento da solução de conflito entre investidores e Estados como o método para a resolução de conflitos de investimento e o papel crescente do investidor no mesmo
The last 30 years in the history of international investment law witnessed the emergence of investor-state dispute settlement (ISDS) as the definitive method for the resolution of investment disputes, and the expanding role of the investor in the same
As investment law enters a new era of reflection with the functioning of the current ISDS machinery at its centre, some of the efforts at reforming international investment law focus on enhancing the role of the state in investment dispute settlement and add to the popularity of some of these mechanisms
Summary
‘Masters’ of their treaties,[2] the contracting parties are seen as the treaties’ ‘authoritative’ interpreters or at least. The last 30 years in the history of international in- as capable of providing ‘authentic’ means of interprevestment law witnessed the emergence of investor-state tation This is true to some extent under general public dispute settlement (ISDS) as the definitive method for international law and under certain investment treaty the resolution of investment disputes, and the expan- provisions that expressly allow the contracting parties to ding role of the investor in the same. Despite the predominant role of the investor, not expressly provided for by the applicable investment some mechanisms involving both states (host state and home state of the investor) do exist Some of these mechanisms, such as state-state dispute settlement and binding interpretations, have been used for years. Treaty as such, and clarifications through diplomatic notes and periodic review of treaty content
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