Legal development of the investment dispute settlement system in Vietnam: Issues on the investor-state dispute Settlement
Investor-state
dispute settlement (ISDS) or investment court system (ICS) is a system through
which individual companies can sue countries for alleged discriminatory
practices. The practice was made widely known through the Philip Morris v.
Uruguay case, where the tobacco company Philip Morris sued Uruguay after having
enacted strict laws aimed at promoting public health. ISDS is an instrument of
public international law and provisions are contained in a number of bilateral
investment treaties, in certain international trade treaties, such as NAFTA
(chapter 11), and the proposed TPP (chapters 9 and 28) and CETA (sections 3 and
4) agreements. ISDS is also found in international investment agreements, such
as the Energy Charter Treaty. If an investor from one country (the "home
state") invests in another country (the "host state"), both of
which have agreed to ISDS, and the host state violates the rights granted to
the investor under public international law, then that investor may bring the
matter before an arbitral tribunal.
While
ISDS is often associated with international arbitration under the rules of
ICSID (the International Centre for Settlement of Investment Disputes of the
World Bank), it often takes place under the auspices of international arbitral
tribunals governed by different rules or institutions, such as the London Court
of International Arbitration, the International Chamber of Commerce, the Hong
Kong International Arbitration Centre or the UNCITRAL Arbitration Rules. ISDS
has been criticized because the United States has never lost any of its ISDS
cases, and that the system is biased to favor American companies and American
trade over other Western countries, and Western countries over the rest of the
world.
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