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Über dieses Buch

This book discusses the use of the compromissory clause in international investment agreements (IIAs) for interstate dispute resolution. It puts forward the possibility of using state-to-state arbitration based on the compromissory clause in IIAs as an alternative means of resolving investment disputes in light of the global debate on the shortcomings of investor-state arbitration.

The book’s main conclusion is that state-to-state arbitration may be used as an alternative to currently popular investor-state arbitration by resolving procedural hurdles which impede its acceptance. It becomes more important with the removal of investor-state arbitration as an option in certain recent IIAs, which then elevates state-to-state arbitration as the sole option for binding third party dispute resolution in the treaty. Even then, it is unlikely to replace investor-state arbitration completely due to its inherent shortcomings, such as the risk of re-politicising disputes and a lack of direct control over the process for the affected investors. Nevertheless, the availability of an alternative forum will benefit all parties involved, as they will no longer be wholly dependent on investor-state arbitration, which can be affected by events such as denunciation from the ICSID Convention or the refusal of a host state to enforce an arbitration award.

Inhaltsverzeichnis

Frontmatter

Chapter 1. Investment Dispute Settlement and the Position of State-to-State Arbitration in Investment Law

Abstract
The popularity of investor-state arbitration had overshadowed other forms of dispute resolution present in international investment agreements. The recent criticism of investor-state arbitration has however led to debates on the need for reform of the system or even for alternatives to investor-state arbitration. State-to-state arbitration is proposed as an alternative which can be considered for debate. The chapter discusses the origin of state-to-state arbitration through compromissory clauses in Friendship, Commerce and Navigation treaties and sheds light on the current status of the compromissory clauses which contain an option for recourse to state-to-state arbitration as an integral part of any present-day international investment agreement. It further introduces the current status of state-to-state arbitration as an alternative which has rarely been used and lays the foundation for a key question addressed in the book: What are the factors which hamper the growth of state-to-state arbitration and how can they be resolved?
Angshuman Hazarika

Chapter 2. Framework for State-to-State Arbitration Under the Compromissory Clause in an IIA

Abstract
The chapter commences with an introduction into the structure of the compromissory clauses present in international investment agreements and the essential requirements which need to be fulfilled for a dispute to be considered for resolution under this provision. In the absence of a significant number of disputes pursued under these provisions, there is a lack of adequate guidance on how the provisions have to be implemented in case of a dispute. Considering this situation, the chapter looks into how the compromissory clauses would provide guidance on the conduct of a state-to-state arbitration and the potential remedies which can be obtained from it. The possible technicalities relating to the conduct of the proceedings and issues which need more clarity are also discussed.
Angshuman Hazarika

Chapter 3. Utilisation of State-to-State Arbitration Based on the Compromissory Clause in Practice

Abstract
A large variety of disputes can possibly be covered under the scope of ‘interpretation’ or ‘application’ of an international investment agreement by a state-to-state arbitration tribunal. However, in the absence of cases, the exact nature of disputes which could emerge from the compromissory clause in international investment agreements in a state-to-state arbitration has not been explored in detail. Through an evaluation of the international investment agreements, existing literature and the few cases of state-to-state arbitration, this chapter enumerates the disputes which may emerge for consideration. A key finding of this chapter is that while an attempt may be made to classify disputes under the umbrella of ‘interpretation’ or ‘application’ of a treaty, such classification may be inadequate and it is a distinct possibility that tribunals may deal with mixed questions in practical situations.
Angshuman Hazarika

Chapter 4. Resolution of Procedural Hurdles in Utilising State-to-State Arbitration Under IIAs

Abstract
Even with the handful of state-to-state arbitration cases arising from international investment agreements, several procedural hurdles have been identified which may affect the acceptance of state-to-state arbitration as a viable alternative. The key hurdles relate to lack of clarity on the relationship between state-to-state arbitration and investor-state arbitration and potential parallel proceedings in the two forums, the uncertainty over the procedure of enforcement of state-to-state arbitration awards and the possibility to challenge state-to-state arbitration awards to stall enforcement. In this chapter, proposals have been made to resolve these hurdles based on a review of international investment agreements, state practice, past cases, and academic literature. It is expected state-to-state arbitration would invite greater acceptance when these issues are resolved.
Angshuman Hazarika

Chapter 5. Coexistence of State-to-State Arbitration Under IIAs with Other Forums of Dispute Resolution and Treaty Interpretation

Abstract
State-to-state arbitration may be present as a common mode for binding resolution of interstate disputes under international investment agreements. They are however far from being the sole mode of resolution of interstate disputes. States may be parties to different treaties which provide for referral of disputes to international courts or tribunals. The current chapter discusses the possibility of co-existence of state-to-state arbitration with these alternative modes of dispute resolution. While it primarily focusses on regional and specialised courts, it also discusses the possibility for overlap of state-to-state arbitration with other bodies entrusted with the power to interpret international investment agreements.
Angshuman Hazarika

Chapter 6. Additional Suggestions for Developing State-to-State Arbitration as an Effective Means of Dispute Resolution

Abstract
The acceptability of state-to-state arbitration as an alternative to investor-state arbitration depends on it being able to resolve the shortcomings of diplomatic protection procedures which encouraged investor-state arbitration in the first place. While procedural hurdles have been identified in the previous chapters, there are further issues that need to be addressed to promote state-to-state arbitration and pitch it as a viable option. The key additional concerns which have been identified and sought to be tackled are the internal hurdles for diplomatic protection claims, the lack of clarity on the scope of abstract interpretations, the extended time periods for dispute resolution and the absence of guidance on procedural rules for state-to-state arbitration in many international investment agreements.
Angshuman Hazarika

Chapter 7. Conclusion

Abstract
State-to-state arbitration can emerge as an alternative to investor-state arbitration but it would be premature to consider state-to-state arbitration as the sole suitable replacement for investor-state arbitration as there are many procedural and implementation issues which need to be resolved. Certain new treaties have state-to-state arbitration as the sole mode of binding dispute resolution which means that these issues need to be dealt with at the earliest to ensure continued effective protection for investors. Coordinated efforts from states, investors and all other interested parties would be necessary to make this possible.
Angshuman Hazarika

Backmatter

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