Institute of International Law's Resolution on the Equality of Parties Before International Investment Tribunals: Introduction, Text and Commentaries

The 2019 Resolution on the Equality of Parties before International Investment Tribunals by the Institute of International Law is a significant step forward in codifying this principle for investor-state dispute settlement. Campbell McLachlan, the Rapporteur, provides an article-by-article analysis, drawing on prior case-law and discussions within the Institute. The Resolution aims to assist counsel and tribunals in investment cases and contribute to the broader debate on reforming investor-state dispute settlement.

Format: Hardback
Length: 146 pages
Publication date: 18 November 2021
Publisher: Cambridge University Press

The 2019 Resolution on the Equality of Parties before International Investment Tribunals (IITs) issued by the Institute of International Law (IIL) represents a significant milestone in the codification of this fundamental principle, particularly in the context of investor-state dispute settlement (ISDS). This principle, which has garnered increasing attention and controversy in recent years, aims to ensure that investors are treated equally and fairly before international investment tribunals.

In this commentary, Campbell McLachlan, who served as the IIL's Rapporteur on the topic, provides an in-depth explanation of the background and rationale behind the Resolution. He then offers an article-by-article analysis of its provisions, drawing upon a wealth of prior case-law and the discussions within the IIL that led to its adoption. The resulting text is intended to serve as a valuable resource for counsel and tribunals involved in investment cases, as well as contribute to the broader debate on the reform of ISDS.

The Resolution emphasizes the importance of impartiality and independence in the conduct of IITs. It requires that both investors and states be represented by counsel of their choice, who are free from any conflicts of interest. It also stipulates that the tribunals shall be composed of independent and impartial judges, who are appointed by the United Nations Security Council or other appropriate bodies.

One of the key provisions of the Resolution is its requirement for transparency in the proceedings of IITs. It mandates that all parties be provided with timely access to relevant information and documents, and that the proceedings be conducted in a public and open manner. This transparency is intended to promote trust and confidence in the ISDS system, as well as ensure that the decisions of the tribunals are fair and just.

The Resolution also addresses the issue of investor protection. It recognizes that investors may face risks and uncertainties when investing in foreign countries, and seeks to provide them with adequate protection against unfair and discriminatory treatment. This includes the right to fair and equitable treatment, the protection of intellectual property rights, and the right to a remedy in the event of breaches of international law.

In addition to these provisions, the Resolution also addresses the issue of dispute settlement mechanisms. It encourages the use of alternative dispute resolution (ADR) methods, such as mediation and arbitration, as a means of resolving disputes between investors and states. It also provides for the establishment of a permanent forum for the settlement of investment disputes, which would be independent of the IIL and operate under the auspices of the United Nations.

Overall, the 2019 Resolution on the Equality of Parties before International Investment Tribunals represents a significant step forward in the codification of this essential principle. It emphasizes the importance of impartiality, independence, transparency, and investor protection in the conduct of IITs. By promoting these values, the Resolution aims to enhance the fairness and effectiveness of the ISDS system, while also contributing to the broader debate on the reform of investment dispute settlement.

Weight: 334g
Dimension: 158 x 234 x 16 (mm)
ISBN-13: 9781316517826