STRIKING CONSISTENCY AND PREDICTABILITY IN INTERNATIONAL INVESTMENT LAW FROM THE PERSPECTIVE OF DEVELOPING COUNTRIES

Abstract

The fragmentation of international investment law into bilateral investment treaties (BITs) and other international investment agreements (IIAs) made it impossible as a system of law. In addition, the potential for inconsistent and conflicting decisions (especially against developing countries) in investment treaty arbitrations are abundant. The causes of this situation are two-fold and concern both substantive law and procedural law. Concerning the substance, the fragmentation of sources of international investment law plays a significant role in disaggregating coherence. Due to the large number of BITs, a state measure might be assessed differently under the two existing investment treaties, with each treaty specifying different standards of investment protection, even varying with the nationality of the investor affected. Inconsistent decisions can also result from the possibility of having multiple proceedings, in the same or different form, relating to an identical set of facts that can arise from independent claims. For developing countries, who face investment law disputes more frequently than developed countries, an ideal solution would be a global investment treaty or a plurilateral investment agreement under the World Trade Organization (WTO) and use its dispute settlement system to resolve investment disputes.

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