Page 13 - นิตยสารดุลพาห เล่มที่ ๒-๒๕๖๑-กฎหมาย

ดุลพาห

of obligations toward investors and their investments and grant investors the
right to bring a claim in international arbitration against the host State for any

breach of those obligation. The increase in IIAs has inevitably led to a surge

in investor-State cases to 855 cases since 1987, with known treaty-based
5
investment arbitration claims.

As the treaties grant substantive and procedural rights, the capacity
of international investors to directly access dispute resolution involving States
has been met with both success and discontent. Investment treaty arbitration,

in particular, has been a source of polarization and stakeholders are actively

seeking alternatives to formal adjudication before ad hoc arbitration tribunals.
The rise in investment arbitrations brought about a backlash against investment
arbitration by a certain regions and number of States. Observers to the system

claim that Investor-State Dispute Settlement (“ISDS”) is inherently public in

nature and therefore incompatible with the ad hoc confidential commercial
arbitration system where arbitrators are selected by the parties. Critics have
also cited lack of independence of arbitrators and an overall bias toward

investors to undermine the legitimacy of the current ISDS mechanism.

As the United Nations Conference on Trade and Development (“UNCTAD”)
World Investment Report 2015 stated :

“There are concerns that the current mechanism
exposes host States to additional legal and financial risks,
often unforeseen at point of entering into the IIA and in

circumstances beyond clear-cut infringements on private
property, without necessarily bringing in any benefits

in terms of additional FDI flows; that it grants foreign
investors more rights as regards to dispute settlement

5. UNCTAD Investment Policy Hub. Retrieved from http://investmentpolicyhub.unctad.org/
ISDS?status=1000.

2 เล่มที่ ๒ ปีที่ ๖๕