Public consultation on investor-state dispute settlement

Public consultation held from 16 May - 23 July 2012

Consultation background

The OECD Freedom of Investment (FOI) Roundtable helps governments design better policies to reconcile openness to international investment with legitimate regulation in the public interest. Governments from all regions of the world participate in the Roundtable.

The 54 governments participating in the Roundtable are currently assessing the dispute settlement system for investor-state disputes under investment treaties (ISDS). To support this process a public consultation has been held to obtain input from legal experts, business and civil society representatives and trade unions on a scoping paper prepared by the OECD Secretariat.

The scoping paper provides a broad overview of the policy issues raised by ISDS and comprises three parts:

Part I places ISDS in a broad and comparative context including with regard to other international dispute settlement systems, and addresses its interaction with domestic legal systems and policy making processes;
Part II addresses key policy issues in ISDS relating to access to justice, costs, remedies, enforcement, third party financing, arbitrators, forum and treaty shopping, and consistency;
Part III summarises results from an OECD survey of ISDS provisions of some 1660 bilateral investment treaties which documents variations in treaty practice across countries and across time.

Contributions

Each section of the scoping paper proposes issues for discussion (read the full list of issues). Consultation partners were invited to address any or all of these issues and to comment on any additional ISDS issues that they feel have been omitted from the scoping paper.

Comments received are being posted below and will be provided to the governments participating in the Roundtable. They will influence individual and joint government policies as well as future initiatives both at the OECD and other international organisations.

Comments received

Thomas Johnson, Iran-United States Claims Tribunal, Adjunct Professor of International Investment Law, Columbia University, former partner Covington & Burling LLP, Washington DC
The Energy Charter Secretariat
The Business and Industry Advisory Committee to the OECD
Business New Zealand
Repsol S.A.
Jan Wouters, Professor of International Law and International Organizations, University of Leuven, President, Flemish Foreign Affairs Council, Of Counsel, Linklaters De Bandt; Nicolas Hachez,University of Leuven, Belgium
Zbysek Kordac, Arbitrator/Senior Lawyer Weinhold Legal, Czech Republic
Nathalie Bernasconi-Osterwalder, International Institute for Sustainable Development (IISD); Lise Johnson, Vale Columbia Center on Sustainable International Investment
US-based global law firm
Professor Christoph Schreuer, Of Counsel at Wolf Theiss, Vienna; Professor Rudolf Dolzer, Director of Institute for International Law, University of Bonn, Germany
Andrea K. Bjorklund, Visiting Professor, McGill University Faculty of Law, Professor, University of California, Davis, School of Law
N. Jansen Calamita, Director, Investment Treaty Forum, British Institute of International and Comparative Law, London; Lecturer in Public International Law, University of Birmingham School of Law, United Kingdom
Burford Group Limited
Stichting Onderzoek Multinationale Ondernemingen (SOMO), Centre for Research on Multinational Corporations
Sophie Nappert, Barrister, Bar of Quebec, Canada and Solicitor of the Supreme Court of England and Wales, Chris Campbell, Assistant Director, Center for International Legal Studies; Luke Nottage, Professor of Comparative and Transnational Business Law, University of Sydney; Director, Japanese Law Links Pty Ltd, Australia, and 11 other signatories to an open letter (signatories listed therein)
Joshua Karton, Assistant Professor at Queen's University Law School, Canada
Gavan Griffith, QC and Lucja Nowak, PhD Candidate at SOAS, University of London
Christian J. Tams, Chair of International Law, University of Glasgow
Jonathan Bonnitcha, ESRC Postdoctoral Fellow in International Investment Law, London School of Economics and Political Science
Andreas von Staden, Assistant Professor of International Organization, Research Program on Global Democratic Governance, University of St. Gallen, Switzerland
Trade Union Advisory Committee (TUAC) to the OECD

>> Read all comments received (PDF)

>> Read the finalised scoping paper, published as an OECD Working Paper on International Investment in December 2012

>> Read the 46 issues for discussion found in the scoping paper.

The scoping paper and the survey of ISDS provisions have been prepared for public consultation. They do not necessarily reflect the views of the OECD or those of its member governments or other government participants in the FOI process. They cannot be construed as prejudging ongoing or future negotiations or disputes arising under international investment agreements.