Originally from Investor-State Arbitration--Lessons for Asia

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One of the problems with being a litigator is that clients are never really happy when they have to call you to say they have a new case, because something bad has happened to them. To some extent, that is the position we all find ourselves in here today talking about investor-state arbitration in Asia because, as has already been pointed out, there has not been much investor-state arbitration deriving from this region. That is a good thing. It shows that the economic regimes and the legal regimes here in Asia have been generally stable and that investors have not had a need to rely upon investor-state dispute resolution provisions.

Let us hope that all of the knowledge that we are downloading remains rarely used in this region, as opposed to some regions of the world, such as Latin America, where these kinds of disputes are arising with some regularity.

I have been asked to talk to you about the role of institutions and the choice of rules that are available to parties in investor-state arbitration. Where the arbitration is held and the rules with which it is conducted generally derive from a number of sources. As has already been explained, for the most part they derive from the investment treaties themselves. Most investment treaties give a choice between either proceeding ad hoc using the UNCITRAL rules or using ICSID. It is possible that in some investment contracts, a long-term concession for example, the contract itself may also provide the source of consent for a particular institution or a particular set of rules. Some treaties provide other mechanisms, but for the most part, investors can choose between ICSID and UNCITRAL when a dispute arises. It is the investor’s choice, because it is the investor who files the claim, and through the treaty the state has already consented to either forum.