An annual IIA Issues Note issued by the United Nations Conference on Trade and Development reviews developments in treaty-based investor-State dispute settlement in 2017. UNCTAD is a permanent intergovernmental body established by the United Nations General Assembly in 1964 supporting developing countries to access the benefits of a globalized economy more fairly and effectively. UNCTAD’s report reveals that 2017 arbitral decisions touched upon many international investment law reform topics, such as compliance of changes to regulatory framework with the fair and equitable treatment provision (JSW Solar and Wirtgen v. Czech Republic, Blusun v. Italy, Eiser and Energía Solar v. Spain), applicability of the police powers doctrine in relation to indirect expropriation claims (WNC v. Czech Republic, Bear Creek Mining v. Peru), cooling-off periods for bringing claims (Supervision v. Costa Rica, Ansung Housing v. China) and limitations of the ISDS provisions (Beijing Urban Construction v. Yemen, China Heilongjiang and others v. Mongolia), as well as the interpretation of the most-favoured-nation clause (Anglia v. Czech Republic, Ansung Housing v. China, Beijing Urban Construction v. Yemen, Busta v. Czech Republic, Teinver and others v. Argentina)) and of the umbrella clause (Supervision v. Costa Rica, WNC v. Czech Republic). An annual review reveals following trends:
1) The number of new investor–State dispute settlement (ISDS) claims remains high
In 2017, investors initiated at least 65 investor-State dispute settlement cases pursuant to international investment agreements and the total number of publicly known ISDS claims had reached 855. About 80 per cent of the new cases were brought under bilateral investment treaties (BITs).
2) Croatia was the most frequent respondent
ISDS cases were initiated against 48 countries, some of them for the first time (Bahrain, Benin, Iraq and Kuwait). Croatia was the most frequent respondent with 4 cases, followed by India and Spain. The majority of new cases were brought against developing countries and transition economies.
3) Most of the ISDS were initiated by investors based in the Netherlands and the U.S.
4) Intra-EU disputes were less frequent
Intra-EU disputes (investor based in the EU member states against another EU member state) accounted for only 1/5 of all arbitrations. However, since the Court of Justice of the EU found ISDS clauses incompatible with EU law, future of intra-EU investment disputes is surrounded by uncertainty.
5) Energy Charter Treaty was the most frequently invoked International Investment Agreement in 2017
Most of the ISID cases in 2017 were brought under bilateral investment treaties. The most frequently invoked treaties included the Energy Charter Treaty, the Austria–Croatia BIT and the NAFTA.
6) In 2017, ISDS tribunals rendered at least 62 substantive decisions
More than half of the decisions on jurisdiction rendered in 2017 were decided in favour of the State, whereas decisions on the merits were mostly decided in favour of the investor.
7) Most frequently appointed ICSID arbitrators since 1987 are B. Stern, L.Y. Fortier and G. Kaufman-Kohler