Most investment arbitration agreements provide for a 6-month cooling-off period, during which the investor and the host state are invited to negotiate for an amicable solution. The starting point of the cooling-off period is usually a declaration of intent for the opening of arbitration proceedings against the host state. If the dispute over the cooling-off period is not resolved, as is customary (many states prefer to wait and see if a foreign investor is actually willing to pay the high costs necessary to follow an investment arbitration procedure), the foreign investor must apply for arbitration in accordance with the current arbitration rules. The vast majority of disputes remain unresolved at this stage. The considerable cost of balancing investment prevents many foreign investors from relying on them. According to a review investigation, the average cost to the plaintiffs was $4,437,000 and the average cost to the respondents was $4,559,000 for investment arbitration proceedings, while the average legal costs were $746,000. The most common agreement on investment arbitration procedures is granted by host countries in international investment agreements (IAAs), including bilateral investment agreements (Bitis) and free trade agreements (FTAs) and multilateral agreements, for example. B.dem Energy Charter Treaty (ECT). Some leading commentators have been predicting the decline of investment arbitrage for many years.
Nevertheless, it is not easy to terminate the many treaties that are already in force, so they are unlikely to disappear in the near future. I will begin with a historical overview of international protection for foreign investors. This overview suggests that such protection has always been controversial, but that controversies have shifted over time on different ideological, institutional and geopolitical axes, sometimes focusing on substantial legal standards, or even where they should be negotiated, and, at other times, on the right dispute resolution forum. After a historical overview, I summarized the following reasons (often unclear or distinct) to grant special international protection to foreign investors in their relations with host countries. I consider this work of economic theory and empirical that exists on both foreign investment and economic policies, on the theories of negotiations between governments and companies (. B for example, Laffont and Tirole) and other relevant normative concepts, such as good governance, the rule of law and non-discrimination. I am trying a rough or preliminary assessment of the strength of the various justifications, given the possible disadvantages that have been identified in the literature. The third part examines what type of dispute resolution is optimal on the basis of a given justification and the type of material standards that would fit that rationale. I am speaking here about options (stylized, it must be admitted): the existing system, provided that the widely criticized features are largely preserved; interstate dispute settlement, which has throughout history been the dominant model of dispute settlement in international economic relations (and where the most developed form is represented by the WTO dispute settlement system); a bilateral investment justice system (ICS), as proposed by the EU and contained in CETA and the EU-Vietnam Agreement; or a multilateral investment tribunal. My conclusion is that, to the extent that one of the reasons generally cited for justifying the investment regime is in order and the material standards of the regime are linked to these grounds, a multilateral investment tribunal is a superior forum for investor-state arbitration, or even bilateral adjudications; In addition, the availability of investor requests, as well as the position of other stakeholders and the settlement of interstate disputes before the multilateral jurisdiction, can be decisive.
The parties must take charge of the spawning