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IBA Subcommittee on Investment Treaty Arbitration (the Subcommittee) has published a report following the Subcommittee’s survey on investment treaty arbitration (ITA). The report arises out of a decision made by the Subcommittee
in 2014 to engage with the perceived increase in criticism of ITA and consider whether or not such criticism was justified and reform required as a result.
Indeed, since 2014, the level of public criticism of certain aspects of ITA has increased, particularly in light of the ongoing negotiations regarding the Transatlantic Trade and Investment Partnership (TTIP). It is also worth noting that
since the Subcommittee's survey was released in July 2016, the European Commission has proposed the use of an investment court to resolve disputes arising out of TTIP so as to address some of the concerns raised in relation to TTIP's investment chapter.
The Subcommittee released a survey questionnaire of 51 questions and 109 individuals from a variety of jurisdictions responded. The report recognises that a response base of 109 participants does not constitute a critical mass for statistical purposes.
The largest respondent groups were counsel and academics. 80% of respondents had experience of ICSID arbitration; 70% had UNCITRAL arbitration experience.
Despite the relatively small number of respondents, the results of the survey provide an interesting insight into many of the key contemporary issues in ITA. While it is helpful to understand the percentage of respondents who expressed concerns regarding
particular matters, understanding the views behind the votes would also be useful.
Overall, while concerns are expressed regarding aspects of ITA, such as substantive inconsistency and arbitrator diversity, some areas, such as the adequacy of the grounds for annulment of ICSID awards, were thought not to require reform.
Access the report here
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