A Research Futures webinar with Dr Emmanuel Laryea
The current dominant system for resolving international investment disputes is the Investor-State Dispute Settlement (ISDS) system or, more precisely, Investor-State Arbitration (ISA) system. The ISA system has proved to be an effective avenue for remedy for foreign investors whose investments are wrongfully impaired by host states. However, by its current design, the system is not accessible to Host-State-Citizens (HSCs) whose interests are harmed by the activities of investors. Harmed HSCs are required to seek redress in domestic forums. But it is well acknowledged that the domestic forums in many developing countries leave many harmed HSCs without remedy. Examples abound in Africa (e.g. the plight of Nigerian citizens in the Niger delta area whose interests have been harmed persistently by the operations of Shell Plc), Asia (e.g. Cambodia) and South America (e.g. Peru). My paper proposes a solution. It argues that a solution lies in HSC-Investor Arbitration (the proposal is also applicable to the concept of International Investment Court). That is, access to remedy for harmed HSCs through the existing arbitration system would provide an effective solution. It advances cogent reasons why developing economies (whether individual countries or as regional groups) should enable HSC-Arbitration. It identifies potential legal challenges to the proposal and advances options for overcoming those challenges.