The IIA Issues Note reviews developments in treaty-based investor-State dispute settlement (ISDS) in 2016. It contains an overview of cases initiated in the past year, overall case outcomes and an in-depth analysis of arbitral decisions.
Developments in investor-State arbitrations in 2016:
- In 2016, investors initiated 62 ISDS cases pursuant to international investment agreements (IIAs), bringing the total to 767 known arbitrations. The new cases were brought against 41 countries, mostly by investors from developed countries.
- About two thirds of ISDS cases in 2016 were based on bilateral investment treaties, most of them dating back to the 1980s and 1990s. The remaining arbitrations were based on treaties with investment provisions.
- In 2016, ISDS tribunals rendered 57 substantive decisions, 41 of which are in the public domain. Tribunals considered many issues that touch upon policy options identified in UNCTAD’s Road Map for IIA Reform and its Investment Policy Framework for Sustainable Development.
- The wording of specific treaty provisions is a key factor in case outcomes, underlining the importance of balanced and careful treaty drafting. This not only applies to future treaties, but also calls for modernizing the existing stock of old-generation treaties. UNCTAD’s World Investment Report 2017 presents and analyses the pros and cons of 10 policy options that countries can take to reform their old-generation treaties.