Conceptual Overlaps between Investment Protection Standards

• Department of Law

Join this Law Researchers Working Group session for a paper presentation on "Conceptual Overlaps between Investment Protection Standards: Analysis of a Yet Unexplored Systemic Problem of ISDS."

This article explores the problem of conceptual overlaps between standards of protection contained in international investment agreements. Such overlaps occur because existing investment protection standards frequently cover similar categories of state conduct.

In other words, where a state measure breaches a particular standard of protection, it will often also violate one or several other standards. This leads, in practice, to a multiplication of claims (or legal bases), which unduly increases the complexity and cost of investor-state arbitration proceedings. Although the problem of overlaps has occasionally been referred to in academic writings, to date, no scholarly work has analysed this phenomenon in any detail.

The present contribution seeks to fill this gap in the literature. It (1) offers a comprehensive examination of the nature, frequency, and magnitude of overlaps, (2) identifies and explores the various causes of this problem, and (3) discusses solutions to prevent or minimize overlaps.