Introduction

This chapter critically examines the scope for Investor-State Dispute Settlement (ISDS) provisions in a Gulf region trade or investment agreement. ISDS provisions are essentially a group of provisions in a trade or investment agreement that foreign investors can use as an instrument to address foreign investment risk at a macro-level. They are complex and risky instruments which are broadly scoped. ISDS provisions potentially allow for decisions of a State that foreign investors consider lack consistency, transparency and objectivity to be challenged by foreign tribunals. Hence, they are both far-reaching and controversial. The purpose of this chapter, then, is to consider whether or not an ISDS provision is the appropriate tool to employ in order to manage legal and commercial risk from the perspective of the Gulf Cooperation Council (GCC).

ISDS provisions have been proffered as a way forward to protect local investors investing in foreign states by providing a centralised process of resolving investment disputes. Whilst these are just some of the benefits of ISDS provisions, there are significant limitations to the mechanism which may have far reaching implications for both parties to such a dispute, and beyond.

The usual forms of agreement in which ISDS provisions are extant are investment treaties. While these agreements are most commonly bilateral, they can also be multilateral, such as the ASEAN Comprehensive Investment Agreement. ISDS provisions also exist within free trade agreements, such as the North America Free Trade Agreement (NAFTA) between the United States, Canada and Mexico. The GCC member States have entered into a significant number of individual bilateral investment treaties (BITs) and other traderelated treaties with foreign countries. In terms of BITs alone, the States have entered into treaties as follows, according to UNCTAD data:

• - Bahrain – 30 (9 not in force, 1 terminated), the first being with the UK in October 1991;

• - Kuwait – 75 (29 not in force, 4 terminated) – Iraq, October 1964;

• - Oman – 38 (11 not in force, 2 terminated) – Kuwait, February 1966;

• - Qatar – 51 (33 not in force), Tunisia, May 1996;

• - Saudi Arabia – 24 (5 not in force), the Philippines, October 2004

• - UAE – 46 (15 not in force, 2 terminated), Kuwait, February 1966;

• - Yemen – 37 (16 not in force, 3 terminated) – Germany, October 1974 (terminated)