13.05.2015

UNCTAD’s report on the latest developments in investor-State dispute settlement (ISDS).


ISDS continues to be in the spotlight of the public debate. UNCTAD’s new report contributes to this debate by providing up-to-date statistical information as well as a review of the decisions issued by arbitral tribunals in 2014. Among the highlights are:

• Investors continue to use the ISDS mechanism. In 2014, claimants initiated 42 known treaty-based ISDS cases. The total number of known ISDS cases reached 608.

• With 40 per cent of new cases initiated against developed countries, the relative share of cases against developed countries has been on the rise (the historical average is 28 per cent). A quarter of all new disputes are intra-EU cases.

• The two types of State conduct most commonly challenged by investors in 2014 were cancellations or alleged violations of contracts and revocations or denials of licences. The sectors where most cases were filed in 2014 are the generation and supply of electric energy (at least eleven cases), followed by oil, gas and mining (ten), construction (five) and financial services (three).

• The Energy Charter Treaty (ECT) surpassed the North American Free Trade Agreement (NAFTA) as the most frequently invoked IIA. · ISDS tribunals rendered at least 43 decisions in 2014, 34 of which are public. The overall number of concluded cases has reached 356, with 37 per cent decided in favour of the State, 25 per cent in favour of the investor and 28 per cent of cases settled.

Arbitral decisions adopted in 2014 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 a number of issues, tribunals continue to arrive at divergent conclusions.

 The IIA regime is going through a period of reflection, review and revision. Investment dispute settlement is at the heart of this debate, with a number of countries reassessing their positions. There is a strong case for a systematic reform of ISDS. UNCTAD’s forthcoming World Investment Report 2015 will provide an action menu for the reform of international investment regime.