Unpacking National Investment Laws

The report examines how national investment laws handle dispute prevention, management, and settlement (DPMS). It finds that while most laws include DPMS provisions—particularly in Africa and Asia—the use of international arbitration, especially through 'advance consent,' exposes states to significant financial risks. The authors advocate for prioritizing national courts and non-adjudicative mechanisms, providing a structured framework for states to reform their investment laws based on specific national policy problems rather than generic international standards.

• An analysis of 167 national investment laws shows that dispute prevention, management, and settlement (DPMS) provisions are common, appearing in nearly 79% of the reviewed laws. The highest inclusion rates are found in Africa (91%) and Asia (84%).
• National courts are a frequent dispute resolution option, mentioned in 57% of laws with a DPMS function. Approaches vary from requiring exclusive use of domestic courts (e.g., Armenia, El Salvador, and Kenya) to requiring the exhaustion of local remedies before seeking other options (e.g., Sierra Leone and Equatorial Guinea).
• Arbitration is referenced in 69% of laws with a DPMS function, but it is never the primary method. Among these, 44% contain "advance consent," which the report argues replicates the financial and regulatory risks of treaty-based investor–state dispute settlement (ISDS).
• Non-adjudicative mechanisms are emerging but are less prevalent than courts or arbitration. These include party-agreed methods (42%), administrative review (39%), and amicable settlement options such as negotiation or mediation (32%).
• The report strongly advises states to avoid including advance consent to international arbitration in national investment laws due to risks including lengthy proceedings, high damages awards, and regulatory chill. It suggests that if arbitration is necessary, it should be subject to case-by-case agreement rather than unilateral, open-ended consent.
• Dispute prevention through domestic institutions is a growing but still minority trend, with only 13.64% of reviewed laws establishing institutions with dispute prevention and management as a core function. Examples include Cambodia's Municipal Investment Sub-Committees and the Myanmar Investment Commission.

APA

Ostřanský, J., Nweke-Eze, S. U., & Manikantan, A. (2026). Unpacking National Investment Laws. International Institute for Sustainable Development. https://www.iisd.org/system/files/2026-04/national-investment-laws-dispute-settlement.pdf

Chicago

Ostřanský, Josef, Stanley U. Nweke-Eze, and Abhishree Manikantan. Unpacking National Investment Laws. International Institute for Sustainable Development, 2026. https://www.iisd.org/system/files/2026-04/national-investment-laws-dispute-settlement.pdf.

Wikipedia

{{cite report |last1=Ostřanský |first1=Josef |last2=Nweke-Eze |first2=Stanley U. |last3=Manikantan |first3=Abhishree |title=Unpacking National Investment Laws |publisher=International Institute for Sustainable Development |date=April 2026 |url=https://www.iisd.org/system/files/2026-04/national-investment-laws-dispute-settlement.pdf |access-date=17 August 2026 |via=Climate Insights Directory}}

BibTeX

@techreport{ostansk2026unpacking, author = {Ostřanský, Josef and Nweke-Eze, Stanley U. and Manikantan, Abhishree}, title = {{Unpacking National Investment Laws}}, institution = {International Institute for Sustainable Development}, year = {2026}, month = apr, url = {https://www.iisd.org/system/files/2026-04/national-investment-laws-dispute-settlement.pdf}, urldate = {2026-08-17}, note = {Indexed by Climate Insights Directory} }