Expected Reforms on ISDS: QMUL - CCIAG Survey on Investors’ Perceptions

Updated: Aug 3



1. Introduction

Arbitration is a highly preferred mechanism for settlement of investment disputes between the host state and foreign investors, as it creates a stable and effective space for foreign investors on dispute resolution. In addition, reform studies are carried out in partnership with the leading arbitration institutions and organizations in order to eliminate the shortcomings of the existing dispute resolution mechanisms.


The research, conducted by Oueen Mary University and the Corporate Counsel International Arbitration Group (CCIAG)[1], provides important data on the preference ratio of investment arbitration as a dispute resolution mechanism by investors in the sector and the areas where reform is expected in investment disputes. It is predicted that the results of the research will be a guide in terms of reform studies.


2- Key Findings of the Survey

It can be seen that the investors and their representatives who participated in the study approach arbitration more positively than other methods, among the different dispute resolution mechanisms used in investment disputes. Private contracts signed between the parties as the legal basis for the arbitration have a more positive impression among investors than the general bilateral Investment Agreements (BITs) signed between the host state and the investor's state.


The positive approach to contract-based arbitration is 81%, while the positive approach to BIT-based investment arbitration is 73%. This situation can be evaluated as an indication that the contracts meet the expectations of the investors in arbitration proceedings to a higher degree compared to BITs.


3. Proposed Areas for Reform

Respondents would welcome the establishment of a multilateral advisory centre open to both states and investors. Also Respondents believe the introduction of a code of conduct for arbitrators in ISDS would be a positive development.


If the process for selecting and appointing ISDS arbitrators were to be changed, respondents have a higher level of confidence in appointments that would be made from mandatory arbitrator lists developed by an institution with equal State and investor representation or by independent institutions to ensure the impartiality and independence of ISDS arbitrators. Respondents also expect third party funding to be allowed to investors in ISDS proceedings as a commercial decision.

Respondents expressed mixed views on the introduction of an appeals mechanism in ISDS and a highly percentage of respondents would be opposed to a re-hearing of the tribunal’s factual and legal findings. The positive and negative opinions of the respondents about the multinational investment court are close to each other. Also Investors expressed positive opinion on the mandatory mediation activities prior to the arbitration proceedings.



KAYNAKÇA

2020 QMUL - CCIAG Survey: Investors’ Perceptions on ISDS, May 2020. http://www.arbitration.qmul.ac.uk/media/arbitration/docs/QM-CCIAG-Survey-ISDS-2020.pdf

[1] 2020 QMUL - CCIAG Survey: Investors’ Perceptions on ISDS, May 2020. http://www.arbitration.qmul.ac.uk/media/arbitration/docs/QM-CCIAG-Survey-ISDS-2020.pdf


YAZAR

Av. Ferhan YILDIZLI

Stj. Av. Esra AYDEMİR