CYIL Vol. 7, 2016

VOJTĚCH TRAPL CYIL 7 ȍ2016Ȏ settlement (“ISDS”) framework in the event that it would be decided, at a later stage, to carry out reforms at a multilateral level. To give some sense of the paper “Can the Mauritius Convention serve as a model for the reform of investor-State arbitration in connection with the introduction of a permanent investment tribunal or an appeal mechanism?”, the author of this short contribution aims to make a short overview below of the paper by providing excerpts from it with the consent of the authors. The paper starts with the commonly known observation and, obviously, purpose of the study that the development of investor-State arbitration was part of an initiative to create an institutionalized and formalized procedure on the international plane, while the International Investment Agreements (IIAs) contributed to the creation of “global governance regimes, constituted by legal rules and institutions to enhance compliance with them”, 2 or, in other words, to the strengthening of the rule of law at the international level. 3 Therefore, the research paper seeks to analyze whether the Mauritius Convention on Transparency could provide a useful model for broader reform of the investor-State arbitration framework and whether there is a possible roadmap that could be followed if States were to decide to pursue a reform initiative aimed at replacing or supplementing the existing IIAs regime with a permanent investment tribunal and/or an appeal mechanism for investor-State arbitral awards. The reformplan is developed on three main blocks: (1) the design of an International Tribunal for Investments (ITI); (2) the design of an Appeal Mechanism (AM) for investor-State arbitral awards; (3) the establishment of a multilateral instrument (the Opt-in Convention) to extend those new dispute resolution options to States’ existing IIAs. The authors conclude that the challenges involved in broader reforms of the investor-State arbitration regime are substantially more complex than the introduction of a transparency standard in investment treaties. At the same time, they also show that the Mauritius Convention could provide a useful model if States wish to pursue such broader reform initiatives at a multilateral level. The introductory point stated that opinions diverge on the merits and demerits of the foreign investment protection regime and in particular investor-State arbitration. Supporters of the system normally highlight the foreign investment protection regime for the promotion of the rule of law at the international level, the functioning 2 THOMAS W. WÄLDE (2007), The Specific Nature of Investment Arbitration, in PHILIPPE KAHN & THOMAS W. WÄLDE (eds.), New Aspects of International Investment Law/Les aspects nouveaux du droit des investissements internationaux, Brill | Nijhoff, pp. 43-120, 70; BENEDICT KINGSBURY & STEPHAN SCHILL (2010), Investor-State Arbitration as Governance: Fair and Equitable Treatment, Proportionality, and the Emerging Global Administrative Law, in ALBERT JAN VAN DEN BERG (ed.), 50 Years of the New York Convention, ICCA Congress Series 14, Kluwer Law International, pp. 5-68. 3 THOMAS W. WÄLDE (2006), Investment Arbitration and Sustainable Development: Good Intentions – or Effective Results?, Transnational Dispute Management, Vol. 3(5), p. 2.

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