联合国贸易发展委员会-投资法下的投资者与国家仲裁：风险和政策教训

Investor–State arbitration underinvestment laws Risks and policy lessons H I G H L I G H T S Automatic or broadly worded consent-to-arbitration clauses in investment laws cancurtail policy space and expose States to international arbitration claims comparable Nine out of every ten investor–State dispute settlement cases based on investmentlaws have been brought against developing economies, reflecting the widespreaduse of such laws in these jurisdictions. More than two-thirds of the invoked laws About 40 per cent of concluded cases were decided in favour of the State, butinvestors prevailed in 58 per cent of cases decided on the merits. Most claims Significant financial consequences per case – $215 million in awarded damagesand $5.7 million in legal costs – underline the need for States to carefully frame Arbitral practice shows that precise drafting, coherent government communicationsand clear transitional rules are critical to avoid unintended interpretations of dispute Clear definitions of protected investments, conditions on compliance with domesticlaw and anti-corruption safeguards, and precisely defined exclusions for security or Ensuring greater coherence between domestic investment laws and modernizedinternational treaty frameworks is both necessary and urgent to reduce overlaps, Introduction Arbitral decisions under national investment laws remain far less studied than the extensivejurisprudence on treaty-based investor–State dispute settlement (ISDS) cases. This knowledge gaplimits policymakers’ ability to anticipate how arbitral tribunals may interpret domestic provisions,articulate clearly the State’s intent, and avoid unintended consequences. It also creates risks where Ensuring greater coherence between domestic legislation and modernized international treatyframeworks is therefore both necessary and urgent. As governments pursue investment policyreforms, including the revision, replacement or termination of first-generation treaties, understanding Building on the Investment Policy Monitor (IPM) No.29 on investment laws trends (UNCTAD, 2024b),this IPM focuses on arbitral decisions based on national investment laws. It highlights the potentialconsequences of certain legislative formulations, and supports reforms that can strengthen dispute- Section 1 reviews ISDS cases in which national investment laws were invoked (box 1), analysingrespondent States and investor home States, arbitration rules applied, outcomes, and economicsectors involved. The section also examines dispute settlement provisions in investment lawsand identifies approaches to strengthen prevention and early resolution of disputes. Section 2distils policy lessons from arbitral practice, showing how tribunals have interpreted key clauses in Box 1Methodology The analysis in this IPM is based on the review of 99 known international arbitrationcases brought by investors against host States in which national investment lawswere invoked either exclusively or in combination with other instruments, such asinternational investment agreements (IIAs) or investment contracts (Annex 1). Thedataset draws on publicly available sources, including specialized reporting services.It excludes cases brought to international arbitration solely under IIAs (which are Source:UNCTAD. 1.Investor–State dispute settlementcases involving domestic investment Scale and respondents To date, at least 99 known ISDS cases have invoked domestic investment laws as their legal basis,including 39 that relied on them exclusively (figure 1 and box 1).1Although modest in scale comparedwith treaty-based ISDS (1401 known cases as of end-2024; UNCTAD, 2025), these disputes cancreate significant financial exposure for respondent States and limit regulatory space, especially Both investment law–based and treaty-based ISDS cases show a similar pattern over time: almost70 per cent of disputes under national laws and about three quarters of treaty-based cases were Figure 1 Investor–State dispute settlement cases based on national investmentlaws (Number of cases, by year of filing) Note:Data for 2025 reflects filings up to July 2025. The chart reflects currently known investor–State cases.Some arbitrations may remain confidential or only become public at later stages or upon their conclusion. Conse-quently, the actual number of cases is likely higher. The chart may be revised in the future to incorporate additional Policy MonitorInvestment At least 35 economies have been respondents to one or more of these claims, with the vast majoritybeing developing economies. The Bolivarian Republic of Venezuela (12 cases), Kyrgyzstan (11) andKazakhstan (10) were the most frequent respondents, followed by Uzbekistan (6), Honduras (5) and Investors from developed economies initiated more than half of the ISDS cases (55 per cent). Thehighest number of cases were brought by claimants from the United States (16 cases), the Netherlands(15), the United Kingdom (9) and Ca