Paper: Risks for Host States of the Entwining of Investment Treaty and Contract Claims: Dispute Resolution Clauses, Umbrella Clauses, and Forks-in-the-Road
Fiona Marshall – This paper is part of IISD’s series entitled “The Best Practice Advisory Bulletin” which aims at making publicly available “best practice” analyses based on actual treaty texts, in order to provide developing and developed country negotiators with state-of-the-art options and approaches to address the new issues and controversies in investment negotiations.
The Best Practice Advisory Bulletin aims to uncover the defects in IIA drafting that enable investors to forum-shop, to initiate multiple proceedings and to internationalize their contractual and administrative disputes. Second, it aims to show how IIA provisions can be simply drafted so as to minimize involuntary host state exposure to this triple threat. The Bulletin finds that the majority of IIAs surveyed utilize a very broad definition of “dispute” in their dispute resolution clauses, that they contain some form of umbrella clause and lack an effective fork-in-the-road clause. This leaves capital-importing States that are party to these IIAs highly exposed.