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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.