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The Law of Investment Treaties, 2nd Edition by Salacuse, Jeswald W (1st May 2015)

15 Investment Treaty Dispute Settlement

From: The Law of Investment Treaties (2nd Edition)

Jeswald W. Salacuse

Subject(s):
Specific treaties — Arbitration — Diplomatic protection — Claims — Treaty provisions — Negotiations and consultation

This chapter first considers the nature of conflicts between investors and states. Three of the most common measures that may lead to a dispute are government actions that cancel or change the contractual or licence rights of an investment; seize or cancel property rights owned by an investor; or change legislation or regulations. The chapter then examines the various means provided by treaties to resolve such conflicts. Most investment treaties provide four separate dispute settlement methods: consultations and negotiations between contracting states; arbitration between contracting states; consultations and negotiations between covered investors and host governments; and investor–state arbitration. Finally, criticisms of investor–state arbitration are considered, regarding the integrity of arbitrators, treatment exceptions, arbitral procedure, transparency of proceedings, and submissions by non-disputing parties. The chapter concludes that the dispute settlement process seems to be in a state of flux and is open to various options for reform.

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