Lessons For Asia - Chapter 13 - Investor-State Arbitration--Lessons for Asia
Originally from Investor-State Arbitration--Lessons for Asia
Not all investor-state arbitrations are conducted on the basis of investment treaties. There are also regular contract arbitrations under the contracts’ arbitration or dispute resolution clauses. The interesting thing is though, that while under contracts the parties each have their obligations and rights set out in the contract, under treaty obligation, almost all of the treaties, the investors have no obligations. They have only rights. Whereas the host state has almost no rights and all obligations. This is a very unusual situation in arbitration because normally both parties have certain rights and certain obligations. So a state could not force an investor to follow the dispute resolution clause in a treaty, whereas the investor, who is not a party to the treaty, does have the right to force a state to go to arbitration, under the dispute resolution clauses. You have this in your paper, so I will not go over it more, but I think it is an interesting point.
The issue of the obligations of the states under treaties has already been discussed so I do not think I need to mention it. The only one thing that was not mentioned and it is not in all treaties but some treaties do not permit, or specifically do and some are silent, is that states do have certain local content restrictions on investment. For example, raw materials for manufacturing. Perhaps a certain percentage would have to be local, or manpower below a certain level would have to be local. That is in some treaties or it is prohibited in others.