Pacific Agreement on Closer Economic Relations (PACER) Plus Negotiations
This memorandum provides guidance on the type of dispute settlement mechanism that best serves the interests of the Pacific Island Countries (“PICs”) in the PACER Plus negotiations. This mechanism must be efficient, cost-effective, and inspire confidence in potential investors. We are cognizant of the need for a dispute settlement mechanism that does not involve binding procedures that could result in burdensome monetary damages imposed on the PICs. Accordingly, we recommend focusing on dispute prevention. Specifically we suggest providing for a dispute prevention mechanism (DPM) in the PACER Plus treaty text to encourage the resolution of investor grievances before formal dispute settlement procedures become inevitable. We also recommend obligatory negotiations at the outset. Though not mandatory, mediation should be strongly encouraged in the text, and be pursuant to a specific procedure outlined in the Investment Chapter. The PICs may consider retaining domestic courts as a binding dispute settlement procedure available at the option of the investor, but such a provision should be tailored to reflect the differing legal capacity levels of the PACER Plus parties.
Clinic: Georgetown University Law Center, 2015
The full memo can be read here.