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 comparableto those under international investment agreements. 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 lawswere adopted between 1995 and 2014. 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 claimsrelate to expropriation (85 per cent) and fair and equitable treatment provisions ininvestment laws (47 per cent). Significant financial consequences per case – $215 million in awarded damagesand $5.7 million in legal costs – underline the need for States to carefully framearbitration provisions in investment laws. Arbitral practice shows that precise drafting, coherent government communicationsand clear transitional rules are critical to avoid unintended interpretations of disputesettlement clauses in investment laws and reduce jurisdictional disputes. Clear definitions of protected investments, conditions on compliance with domesticlaw and anti-corruption safeguards, and precisely defined exclusions for security orpublic policy are also essential to safeguard regulatory space. Ensuring greater coherence between domestic investment laws and modernizedinternational treaty frameworks is both necessary and urgent to reduce overlaps,legal uncertainty, and unintended legal consequences. 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 whereinvestment laws interact with overlapping or conflicting obligations in bilateral investment treaties(BITs) and other treaties with investment provisions (TIPs). Broad or ambiguous formulations inarbitration clauses, in particular, may expose States to unexpected claims and restrict their policyspace. 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, understandinginterpretative trends and the implications of specific drafting choices in investment laws has becomeessential. 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-risk management, align domestic frameworks with evolving global standards, and safeguardsustainable development objectives. 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 ininvestment laws, the risks and implications for States, and how these insights can inform the designor reform of national investment legislation. The IPM concludes by summarizing key takeaways toguide policymakers in reforming investment laws. 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 arecovered by UNCTAD’s Investment Dispute Settlement Navigator database) andarbitrations brought under State contracts. It also does not cover disputes in whicha party merely signalled an intention to file a claim without commencing arbitration,and disputes invoking domestic legal instruments other than national investmentlaws (e.g. mining codes). Source:UNCTAD. 1.Investor–State dispute settlementcases involving domestic investmentlaws Scale and respondents To date, at least 99 known ISD