World Investment Report 2009: Transnational Corporations - Unctad

34 World Investment Report 2009: Transnational Corporations, Agricultural Production and Development
countries. The parties agreed that investment issues
will be dealt with through BITs between Singapore
and individual GCC member countries.
In Africa, countries relied on regional
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framework agreements. The United States concluded
a Trade and Investment Framework Agreement
(TIFA) with the East African Community (EAC) and
a Trade and Investment Cooperative Agreement with
the Southern African Customs Union (SACU). These
agreements establish an institutional framework to
monitor trade and investment relations between the
parties and to consider ways to promote investment
(see annex table A.I.13).
d. Investor-State dispute settlement
In parallel with the expanding IIA regime,
the number of investor-State disputes has remained
relatively high. The cumulative number of known
treaty-based cases had reached 317 by end 2008
(figure I.25). 56 In 2008, at least 30 new treaty-based
investor-State dispute cases were filed, 21 of them with
the International Centre for Settlement of Investment
Disputes (ICSID). While this was lower than in
2007, when 35 new cases were filed, it is nonetheless
considerably higher than those filed before 2002.
Since ICSID is the only arbitration facility to maintain
a public registry, the actual number of treaty-based
cases is likely to be higher.
The rise in disputes continues to affect many
countries. In fact, at least 77 governments – 47 in
developing countries, 17 in developed countries and 13
in transition economies – were involved in investment
treaty arbitration by the end of 2008. Argentina still
tops the list with 48 claims lodged against it, two of
which were brought in 2008. Mexico is second, with
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(15) and Ecuador (14). Countries with a relatively
large number of new known cases in
2008 included: Ecuador (4), Ukraine
(4) and Georgia (3). Three countries
faced arbitration for the first time in
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As many as 92% of known claims
(317) were initiated by investors from
developed countries, whereas by the
end of 2008, there were 20 cases filed
by investors from developing countries
and 9 from transition economies. Of
the 96 cases concluded by end 2008, 51
were decided in favour of the State, and
45 in favour of the investor, although
four of these cases are still pending
before an ICSID annulment committee.
At the same time, 48 cases were
discontinued following settlement, 142
Number of IIAs (other than BITs and DTTs)
300
250
200
150
100
50
0
Figure I.23. Distribution of DTTs concluded at end-
2008, by country group
(Per cent)
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Source: UNCTAD (www.unctad.org/iia).
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cases were still pending and for 31 cases the status
was unknown.
The large majority of cases were initiated on
the grounds of violating a BIT provision. The BIT
between Argentina and the United States leads with
18 claims, followed by the BIT between Ecuador
and the United States and that between the Republic
of Moldova and the Russian Federation, with nine
claims each. With regard to regional and plurilateral
international investment agreements, the North
American Free Trade Agreement (NAFTA) alone was
used in 48 claims while the Energy Charter Treaty
(ECT) was used for at least 20 claims. 57 The Central
American Free Trade Agreement (CAFTA) has been
used in at least two claims since its entry into force.
This shows that investors are increasingly using
investment chapters of free trade agreements (FTAs)
for filing claims against host States.
Figure I.24. Number of IIAs concluded at end-2008,
cumulative and per period
1957–1967 1968–1978 1979–1989 1990–2000 2001–2008
Source: UNCTAD (www.unctad.org/iia).
By period Cumulative