A/HRC/30/44
IIAs and their implementation suggest that the time has come to revisit the IIA regime with
a view to transforming it. Such challenges include the move towards megaregional
agreements and the increasing number of investor–State dispute settlement (ISDS) cases.
5. Member States and IIA stakeholders at the 2014 IIA Conference, held in
connection with the World Investment Forum in Geneva in October, called upon UNCTAD
to develop a road map for the reform of the IIA regime and sketched the contours of such
reform.
6. A number of developments characterize the current IIA regime and set the
background against which such reform would be undertaken.
7. First, the balance is gradually shifting from bilateral treaty making to regional
treaty making, including through megaregional agreements, such as the Regional
Comprehensive Economic Partnership, the Trans-Pacific Partnership, or the Transatlantic
Trade and Investment Partnership. These agreements, also known as “megaregionals”,
could have systemic implications for the IIA regime: they could either contribute to the
consolidation of the existing treaty landscape or create further inconsistencies through
overlap with existing IIAs, including those at the plurilateral level (World Investment
Report 2014).
8. Second, the second-highest number of treaty-based ISDS cases were brought
against host countries in 2014. Host countries — both developed and developing — have
learned that ISDS claims can be used by foreign investors in unanticipated ways, as a
number of recent cases have challenged measures adopted in the public interest (World
Investment Report 2014). This has sparked growing interest in reform of the investment
dispute settlement system.
9. Third, an increasing number of countries are concluding IIAs with novel
provisions aimed at rebalancing the rights and obligations between States and investors, as
well as ensuring coherence between IIAs and other public policy objectives, in response to
the recognition that inclusive growth and sustainable development need to be placed at the
core of international investment policymaking (2013 and 2014 editions of the World
Investment Report).
UNCTAD Trade and Development Report 2014 – excerpts (pp. 46-48)
In an increasingly globalizing world, no less than at the domestic level, market
activity also requires a framework of rules, restraints and norms. And, no different from the
domestic level, the weakening and strengthening of that framework is a persistent feature.
However, there are two important differences. The first is that the international institutions
designed to support that framework depend principally on negotiations among States with
regard to their operation. Essentially these States must decide on whether and how much of
their own policy space they are willing to trade for the advantages of having international
rules, disciplines and support. Inevitably, in a world of unequal States, the space required to
pursue their own national economic and social development aspirations varies, as does the
likely impact of an individual country’s policy decisions on others. Managing this trade-off
is particularly difficult at the multilateral level, where the differences among States are the
most pronounced. Second, the extent to which different international economic forces can
intrude on a country’s policy space also varies. I n particular, cross-border financial
activities, as Kindleberger (1986) noted in his seminal discussion of international public
goods, appear to be a particularly intrusive factor. But in today’s world of diminished
political and legal restraints on cross-border economic transactions, finance is not the only
such source; as chapter V notes, there are also very large asymmetries in international
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