Report: Survey on Obstacles to Settlement of Investor-State Disputes

Abstract

Investor-State arbitration is a controversial topic, so much so that trade agreements have sparked debate and protests around the world, including in countries whose investors are frequent users of investor-State dispute settlement (‘ISDS’). While many disputes apparently are settled, there is growing interest in encouraging more settlement. Against this backdrop, the International Dispute Resolution team at the NUS Centre for International Law (CIL) initiated a project to identity potential significant obstacles to settlement. The team compiled a comprehensive, though non-exhaustive, list of possible obstacles as well as pathways to settlement, resulting in notes and “mind maps” summarising the factors.

As a next step, CIL developed a survey to test the validity and relative relevance of the possible obstacles identified, to be sent to an array of experienced users of ISDS (arbitrators, private counsel, academics, and institution representatives). While the survey would necessarily collect more anecdotal than empirical evidence, we considered the findings would still be useful in revealing what this community perceives to be common obstacles to settlement.

Keywords: Investor-State, Arbitration, Dispute Resolution, Obstacles to Settlement, Trade Agreements