Securing Adequate Legal Defense in Proceedings under International Investment Agreements: A Scoping Study

CCSI prepared a Scoping Study on Securing Adequate Legal Defense in Proceedings under International Investment Agreements (Scoping Study) for the Ministry of Foreign Affairs of the Netherlands.

• A summary version (33 pages) is available here.
• A webinar (March 24, 2020) discussing the study and its findings is here (and accompanying slides with speaking notes here).

The primary research question that the Scoping Study was requested to address is: How can adequate legal defense for parties in proceedings under International Investment Agreements (IIAs) be better secured?

The Scoping Study provides a broad and inclusive overview of issues, concerns, empirical evidence, opinions, lessons learned, and proposed solutions as they relate to potential or expanded Assistance Mechanisms for international investment law. This Scoping Study reflects input received on a confidential basis from: government officials (of all World Bank Group economic development levels); individuals who have experience establishing or working for existing or attempted Assistance Mechanisms; individuals who have experience working for an arbitral institution; academics who have written on and/or advised states with respect to international investment law; private practitioners; representatives of non-governmental organizations; and representatives of private sector foreign investors.

Concerns about IIAs and ISDS are much more fundamental than only the financial costs of participation in this system. The Scoping Study considers the range of problems that states and other actors have in engaging with and benefiting from international investment law and in participating effectively in investor-state dispute settlement processes related to:

• investment policy-making
• IIA negotiation
• implementation and management of their IIAs and associated policies
• dispute prevention
• pre-dispute management and consultations
• case staffing
• anticipating, and potentially resolving, ISDS cases at an early phase
• appointing arbitrators
• dealing with uncertainty and ambiguity
• working with experts
• engaging in discovery of and managing information.

The Scoping Study surveys a wide variety of models that Assistance Mechanisms, both with respect to international investment law as well as those employed in other legal fields, have taken and may take to address various concerns.

Various cross-cutting issues emerged from analysis of and experience with existing Assistance Mechanisms. These cross-cutting issues should be considered by policy-makers as they consider the breadth and depth of services as well as the model(s) that an Assistance Mechanism could follow. The cross-cutting issues that are explored in depth in the Scoping Study include:

• Quality, reliability, reputation, and trust;
• Funding of an Assistance Mechanism and scope of services;
• Costs of support and who bears them;
• Stakeholder tensions;
• Identifying the client/beneficiary;
• Location, staffing, and remuneration;
• Institutionalized vs. ad hoc mechanisms;
• “Politics” surrounding the role of an Assistance Mechanism; and
• Intersection with other reforms.