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6 - Defending the State in ISDS and Preventing Disputes

from Part II - Formal and Informal Institutional Effects of Investment Treaties on National Governance

Josef Ostřanský
Affiliation:
International Institute for Sustainable Development
Facundo Pérez Aznar
Affiliation:
Geneva Center for International Dispute Settlement
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Summary

This chapter analyses the policies and practices related to resolving investor–state disputes through ISDS. In this area, three broad themes emerged from our data. First, there are practices of forming the defence strategy for specific investment arbitrations and handling ISDS proceedings. The main issue is whether to engage lawyers from private practice and, if so, to what extent. Second, we discuss the matter of coordination and communication between various governance actors during ISDS proceedings. The third issue is that of dispute prevention. Given the stakes, risks, and challenges resulting from ISDS disputes, many governance actors dealing with IIAs realise that dispute prevention is crucial in internalising the IIA disciplines. This section focuses on various training and educative programmes for bureaucrats that were designed, proposed, or implemented to increase the knowledge about and awareness of IIAs within the broad sphere of national governance. We end with a discussion on the blurring of the public–private divide through the engagement of private expertise in the service of the public when defending ISDS cases.

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National Governance and Investment Treaties
Between Constraint and Empowerment
, pp. 186 - 226
Publisher: Cambridge University Press
Print publication year: 2023

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