The Investor-State Dispute Settlement (ISDS) Debate: Do Savings Provisions Influence Arbitration Outcomes?

Investor-State Dispute Settlement (ISDS), an instrument of international trade and investment law, today leads perceptions regarding the integrity of international dispute resolution and its administration. If confidence in international economic institutions to render judgements which are impartial to political influences become suspect, then their durability will erode. This inquiry investigates whether or not power imbalances are reflected inordinately within ISDS arbitration outcomes between host nations and their foreign investors. Although there have been clear instances which question any observer\u27s view of ISDS impartiality, these outcomes have also served to distort a complicated fabric of case results that have changed and evolved both in time and place. By comparing results from the United Nations Conference on Trade and Development\u27s (UNCTAD) International Investment Database with the newly created International Investment Agreement (IIA) Mapping Project, it is now possible to test for correlational evidence between ISDS decisions and the presence of savings provision clauses. These clauses have been presented by ISDS proponents as a corrective measure with the power to restore legal faith in international judicial outcomes. With the creation of a nearly comprehensive and originally curated dataset, analysis reveals a modest but measurable correlation between the presence of savings provisions and the decision of ISDS arbitration to be decided in favor of a state. These findings and the additional qualitative analysis given here, bolster support for the inclusion of savings provisions as a meaningful improvement in investor-state contractual defense and the maintenance of international confidence regarding the durability of international economic institutions