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Journal of International Economic Law 2000 3(3):417-439; doi:10.1093/jiel/3.3.417
© 2000 by Oxford University Press
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State-state and investor-state dispute settlement in the OECD draft multilateral investment agreement

P Malanczuk

Law Faculty, Erasmus University Rotterdam, Rotterdam, The Netherlands

The failure of the OECD negotiations on the draft Multilateral Agreement on Investment (MAI) has been, at least in part, attributed to its envisaged dispute settlement mechanisms. This article analyses the state-state and investor-state dispute settlement provisions of the draft MAI and argues that this criticism is based upon misunderstandings. The proposed procedures, especially the standing of private foreign investors against host states, are largely in conformity with modern developments in recent bilateral and multilateral investment protection instruments. Rather, the draft MAI failed to sufficiently clarify two substantive issues: the scope of investment protected, in particular in the pre-investment phase, as well as the complicated relationship between the MAI and dispute settlement mechanisms set out by other relevant multilateral agreements such as the WTO.


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