Consistency, efficiency, and transparency in investment arbitration

In 2014, the International Bar Association (IBA) Subcommittee on Investment Treaty Arbitration conducted a survey to gain an understanding of the criticisms levelled at investment treaty arbitration and the extent to which such criticism justified reform. The survey contained 51 questions and covered a wide variety of topics, reflecting the practical experience of investor-state arbitration users. In 2016, the Subcommittee summarised the responses received.

The purpose of this report is to discuss the salient issues currently facing investment arbitration and to offer proposed solutions on the matters of concern raised in the survey. Three broad topics are addressed – consistency, efficiency and transparency – which capture most of the subjects raised with the current state of investment treaty arbitration. Indeed, increasing consistency, efficiency and especially transparency foster the legitimacy of investor-state dispute settlement (ISDS). 

Each section of the report outlines specific questions and proposes potential solutions to the problems discussed, with the goal of affirming the overall legitimacy of investment treaty arbitration. Ultimately, the hope is that this report will both deepen the understanding of some of the challenges facing investment arbitration and promote a productive discussion concerning potential improvements.

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