联合国贸易发展委员会-2021年投资者与国家仲裁裁决回顾：对国际投资协定改革的见解（英）-2023.7-39页_849kb

IIA Issues Note: Review of 2021 ISDS Decisions and Insights for IIA Reform

1. Key Issues Addressed in ISDS Decisions

• Investment Definition & Coverage: Tribunals generally upheld broad investment definitions, endorsing reform options to include sustainability criteria.
• Treatment & Protections: Debates around Fair & Equitable Treatment (FET), legitimate expectations, regulatory stability, and Full Protection & Security (FPS) highlighted the lack of clear standards, with FET being particularly contentious.
• Expropriation: Indirect expropriation claims were narrowly interpreted, with reform proposals calling for clearer criteria.
• Public Policy Exceptions: Although more common in newer IIAs, application in ISDS remains questionable as a safeguard for regulatory rights.
• Arbitration Access: Consent to ISDS remains challenged, especially for intra-EU disputes, while limitation periods varied considerably.

2. Speeding Up IIA Reform

• About 95% of cases concerned claims under old-generation IIAs (1980–2010).
• Newer IIAs include reformed provisions, but tribunals' expansive interpretations raise doubts about effectiveness.
• UNCTAD recommends simplifying and strengthening IIAs to align with sustainable development and climate goals.

3. UNCTAD's Tool for IIA Reform

• The IIA Toolbox provides policy options to transition IIAs into instruments supporting sustainable investment, focusing on:
  • Promoting investment and technology transfer,
  • Strengthening the right to regulate,
  • Enhancing corporate social responsibility,
  • Proposing novel clauses free from investor-State arbitration.

Conclusion

Reforms are crucial to prevent IIAs from impeding policy responses to global challenges. Existing treaties must be renegotiated, amended, or terminated to align with sustainable development, and UNCTAD’s insights and toolbox offer actionable guidance.