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Article
Author(s)
Munkhselenge Purevdorj
Full-Text PDF XML 669 Views
DOI:10.17265/1548-6591/2020.05.004
Affiliation(s)
National University of Mongolia, Mongolia
ABSTRACT
The research constitutes
the host state’s right and investor’s right towards investment disputes, and
legal protection for the host state in case of investment dispute. Although
investment arbitration deals with cases mostly on infringement of investor’s
rights, the host state’s right is mainly silent on bilateral agreements and
other investment agreements.
International Investment Agreements (IIAs) are concluded between states. Only states
give consent to arbitration in IIA. International
arbitration is a voluntary and consent-based method of settling disputes. It
can be referred from the present investment agreement that offers and consent
provisions are legislated not sufficiently in the investment agreement for the
protection of the host state and investor. There exists no prevention and
monitoring instrument, or clause in the investment agreement that prevents
investor’s “taking advantage” of consent to filing to arbitration. Taking
advantage can be defined as exploit or make unfair use of one’s own benefit.
This also refers to example of disputes for the host states, which lack of
international dispute experiences. The host states, which lack of international
dispute experiences, are count to be developing countries, where natural
resource and mining are a dominating sector. Mongolian mining disputes are
counted to be around 10 in numbers since 2006. Comparing to average yearly
number of investor-state dispute settlement (ISDS) cases, the number of cases arouse against Mongolian
government is considered to be superior in quantities, and abstract in sequence
of period of timing. Convention and Rules on Transparency are still silent on
investment agreement infringements on offer and consent provisions. Thus,
investment agreements and Bilateral Investment Treaties (BITs) should include
clauses on offer and consent provisions of the host state and investor
relations on investment dispute in order to protect both rights of the host
state and investor, and prevent further infringements in the dispute process.
KEYWORDS
investor-state arbitration, IIA, foreign direct investment, mining, Mongolia
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