CYIL Vol. 7, 2016

VOJTĚCH TRAPL CYIL 7 ȍ2016Ȏ IIAs critical issues, i.e. dispute settlement, and avoid engaging in the controversies surrounding the substantive standards. Admittedly, no absolute uniformity would be achieved, because the applicable law – the substantive treaty standards – would continue to be anchored in different treaties. However, consistency would be reached in the application of the same IIA and of different IIAs with identical or nearly identical wordings. And even when applying differently worded IIAs, it is to be expected that the ITI and AM will pursue consistency more than ad hoc bodies, because of the elements of tradition, continuity and collegiality which are inherent in permanent courts. Finally, the opt-in mechanism would allow the initiative to start as a plurilateral one, with the possibility for States to join at a later stage, whenever they consider it appropriate. 36 This, too, would strengthen the project’s chances of success. The authors of the report propose the roadmap which the UNCITRAL could consider with a view to coordinating States’ efforts in pursuing this reform initiative to create the two bodies in the ITI scenario and in the AM scenario, in line with the Mauritius Convention approach by reflecting the Transparency Rules. The subsequent step would consist in the drafting of an opt-in convention (like the Mauritius Convention) and referred to as the “Opt-in Convention”, which would accomplish the extension of the new rules on the ITI and the AM to the existing IIAs. The opt-in instrument should be a treaty. By contrast, those instruments which would set out the ITI and AM could be called as the “ITI Statute” and the “AM Statute”. The Opt-in Convention would then refer to the ITI/AM Statutes, and most likely include them as an Annex to the Treaty (in which case the ITI/AM Statutes would assume treaty status too). By becoming a party to the Opt-in Convention, a State would automatically be bound by the ITI/AM Statutes (with the possibility of any appropriate reservation). The Opt-in Convention’s primary aim would thus be to extend the ITI/AM Statutes to existing IIAs. States concluding IIAs in the future could incorporate the ITI/AM dispute settlement options in their new IIAs, by way of reference to the Statutes, even though they are or intend to become parties to the Opt-in Convention, likewise the present references in IIAs to arbitral rules, be they ad hoc (e.g., UNCITRAL) or institutional rules. Alternatively, the ITI/AM Statutes could be conceived of as treaties. The ITI/AM Statutes would offer regulatory and institutional references found in investment treaties, contracts and national laws as it is to the ICSID Convention. The treaty avenue may be deemed more appropriate, especially given that the Statutes would entail the creation of entirely new institutions (with the related presence of an organizational structure, funding aspects, the possible negotiation of host country agreements, etc.). Asking the fundamental question of the legal nature of a future ITI: ‘Would it be in the nature of “arbitration” or of an “international court”?’, the answer to this issue will have impact on the determination of the law governing the proceedings

36 See also UNCTAD (2013), p. 9; Ameli et al. (2016), p. 54.

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