Facilitating Access to Investor-State Dispute Settlement for Small and Medium-Sized Enterprises: Tracing the Path Forward
Résumé
The costs of accessing investor-state dispute settlement (ISDS) are notoriously high.
International investment treaties and investment dispute settlement in particular have
been primarily designed with large investors in mind – those with the means to access
an international tribunal –, while small and medium-sized enterprises (SMEs) and
individual or vulnerable investors can face significant barriers to accessing ISDS.
This article is the first in legal scholarship to identify and evaluate the diverse opportunities
that exist for the establishment and operation of mechanisms allowing SMEs
better and easier access to ISDS. Drawing on the wealth of comparative experience
from the functioning of existing dispute settlement assistance mechanisms in international
courts and tribunals, the article argues that legal assistance is a more efficient
and cost-effective tool than financial assistance and presents concrete proposals for
the funding and operation of such a mechanism for SMEs. Finally, the article examines
the political cost involved in facilitating SMEs’ access to ISDS, in light of the
fact that some states have been increasingly wary of ISDS, but it weighs this challenge
against the imperative of ensuring effective access to justice.
Mots clés
Small and medium-sized enterprises (SMEs)
investor-state dispute settlement (ISDS)
United Nations Commission on International Trade Law (UNCITRAL)
access to justice
international investment agreements (IIAs)
advisory centre on international investment law
procedural costs
legal assistance funds
expedited proceedings
UNCITRAL Working Group III