1. Reforming the Global IIA Regime –
High Level Seminar: Opinion 1-17 of the ECJ and Reform of Investment Protection
Reforming the Global IIA Regime –
UNCTAD Perspective
6 September 2019
Brussels
Ms. Elisabeth Tuerk
Chief, International Investment Agreements (IIA) Section,
Division on Investment and Enterprise, UNCTAD

2. Key messages: Reform is progressing, but much remains to be done
International investment policy making remains dynamic
UNCTAD’s policy tools have spurred action (most of the new treaties contain elements of reform)
Modernizing old-generation treaties is a priority (they are 10 times as many as the number of “modern” IIAs and they lack reform-oriented features)
Reform needs to be holistic (changes in the rules of dispute settlement as well as the substantive rules)
Reforms must be undertaken in a transparent and inclusive manner (engaging in meaningful stakeholder dialogue)

3. UNCTAD data on IIAs and ISDS

4. International investment policymaking remains highly dynamic
Number of IIAs signed,
Source: UNCTAD, WIR 2019

5. The number of new ISDS cases remains high
Trends in known treaty-based ISDS cases,
Source: UNCTAD, WIR 2019

6. UNCTAD’s work on sustainable development-oriented IIA reform

7. UNCTAD’s Reform Package for the Int
UNCTAD’s Reform Package for the Int. Investment Regime, Launched at the 2018 World Investment Forum (WIF)
Phase 1
More than 100 policy options for treaty clauses addressing the five priority areas for sustainable development-oriented treaty making
Phase 2
10 reform mechanisms that countries can use to modernize existing old-generation treaties
Phase 3
Policy guidance for 3 prongs of action towards ensuring overall investment policy coherence for sustainable development

8. Phase 1 UNCTAD’s Road Map for IIA Reform (2015)
Source: UNCTAD, WIR16

9. Phase 1 Reform–oriented provisions in IIAs concluded in 2018
Source: UNCTAD, WIR 2019

10. Phase 1 ISDS reform elements in IIAs concluded in 2018
Source: UNCTAD, WIR 2019

11. Phase 2 From old-generation IIAs to the conclusion of recent IIAs
Stock of treaties, old-generation (1959 – 2011) and recent ( )
(Per cent)
Source: UNCTAD, WIR19

12. Phase 2 UNCTAD’s 10 Options for modernizing the existing stock of old-generation IIAs (2017)
Source: UNCTAD, WIR18

13. Phase 2 Terminations on the rise
Effective IIA terminations (Number of IIAs by selected period)
This includes treaties:
unilaterally denounced
terminated by consent
replaced by a new treaty
expired automatically
Source: UNCTAD, WIR19

14. The way forward: IIA reform should be
Holistic: looking at IIAs in their entirety
IIA reform should be comprehensive: procedural aspects, but also substantive standards of protection
Reform should extend not only to future, but also to existing treaties, and beyond IIAs
Inclusive: ensuring an inclusive and transparent process
Addressing the "development challenge" (rule-takers) and involving other stakeholders
Sustainable: not losing sight of the bigger picture
Shaping the process so that it effectively pursues the overarching objective of sustainable development

15. The way forward: IIA reform should be (cont.)
UNCTAD policy tools include:
Investment Policy Framework for Sustainable Development
Reform Package for the Global Investment Regime
Global Action Menu on Investment Facilitation
UNCTAD policy tools are
Applied across UNCTAD’s three pillars of activities

16. THANK YOU!
investmentpolicy.unctad.org
worldinvestmentforum.unctad.org