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15 Investor-State Arbitration: Striking a Balance Between Investor Protections and States’ Regulatory Imperatives

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Chapter Summary

The field of investment law is something of a Rorschach test: how one perceives the equities often reflects one's predispositions. To many of its proponents, investor-State dispute settlement (ISDS) is the most revolutionary development in transnational dispute resolution since the Jay Treaty arbitrations between the United States and Great Britain. This chapter analyses Australia's and South Africa's decision to exclude ISDS from future investment treaties and trade agreements. Unlike the clamorous exit from ICSID by some Latin American States, Australia's and South Africa's more studies rejection of investor-State arbitration provides a useful starting point for discussing the risks and benefits of investor-State arbitration from the State's perspective. It examines more broadly some options for States in customizing or clarifying the language in their treaties to mitigate some of the perceive risks.

Keywords: Great Britain; investment law; investment treaties; investor-state dispute settlement (ISDS); Latin American States; Rorschach test; United States



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