CYIL vol. 9 (2018)

ONDŘEJ SVOBODA – JAN KUNSTÝŘ CYIL 9 ȍ2018Ȏ which “exemplifies developments in investment protection and ISDS provisions for modern trade and investment agreements.” In summary, the proposed new trends include the ‘loser pays’ principle, the clear and explicit right of governments to regulate in the public interest, prohibition of parallel claims under ISDS provisions in domestic courts, and improved transparency. 34 It is very likely that the UK will embrace these elements and apply them in its future treaty practice. It can also be reasonably expected that the UK will continue in its policy regarding transparency after signing the Mauritius Convention because “the UK played a leading role in the negotiation of the United Nations Commission for International Trade Law (UNCITRAL) Rules on Transparency in Treaty-Based Investor-State arbitration.” 35 Moreover, there is a clear, nevertheless nondominant 36 trend in the international investment adjudication to greater transparency. It is therefore safe to assume that the future UK BITs will incorporate the UNCITRAL transparency rules. 37 Furthermore, the UK’s position on investment issues can be deduced from the ongoing discussion in an UNCITRAL working group on investor- state dispute settlement (ISDS) reform. During the discussion, the UK expressed concerns regarding third party funding due to the current lack of disclosure with respect to ‘behind the scenes’ funders of claims. 38 After the public debate in Europe on the TTIP negotiations and the EU’s promptly developed innovative approach to investment protection and ISDS the UK seemed to have embraced these changes. However, it is less clear whether the post-Brexit UK will accept this approach in all its complexity, since there may be doubts surrounding the adoption of an investment court system (ICS) for future bilateral negotiations. What is next for the UK investment policy? Conducting a successful trade policy requires three important elements of domestic consensus: a) political, between key parties; b) regional, between different parts of a country; and c) societal, among stakeholders’ interests. 39 This approach can be similarly applied to investment policy, perhaps with the exception of a regional element as no autonomous part of the UK has expressed its position on these issues. The two-element consensus will be principally needed for drafting of a new model BIT. Experiences from other jurisdictions show that this can become a gruelling and demanding process to get all stakeholders on board. 40 34 Ibid, para 23. 35 HM Government, Government Response to the House of European Union Committee’s Fourteenth Lords Report: The Transatlantic Trade and Investment Partnership (2014) 25. 36 SVOBODA, Ondřej. ‘Current State of Transparency in Investment Arbitration: Progress Made but Not Enough’ in DRLIČKOVÁ, Klára, KYSELOVSKÁ, Tereza (eds.). COFOLA INTERNATIONAL 2017: Resolution of International Disputes (Conference Proceedings) (Acta Universitatis Brunensis 2017). 37 O’NEILL, Aidan, JABER, Tamara. ‘Brexit, the UK and bilateral investment treaties’ (The Law Of Nations Blog, 30 May 2017) accessed 10 May 2018. 38 PETERSON, Luke Eric. ‘Analysis: What did governments agree (and disagree) on at recent UNCITRAL meetings on investor-state dispute settlement reform?’ (Investment Arbitration Reporter, 4 January 2018) accessed 28 May 2018. 39 HENIG, David. ‘Assessing UK Trade Policy Readiness’ [2018] 7. 40 See e.g. VIS-DUNBAR, Damon. ‘Norway shelves its draft model bilateral investment treaty’ (Investment

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