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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.