‘You can’t always get what you want but if you try sometimes well you might find you get what you need.’
-The Rolling Stones
International investment agreements (‘IIAs’) and investor-state dispute settlement (‘ISDS’) inspire passionate, often vitriolic debate. Ostensibly virtuous measures designed to encourage international trade by promoting foreign direct investment (‘FDI’) have become a lightning rod for academic criticism. Indeed, ISDS inspires such strength of feeling that 230 professors of law and economics put their names to a letter urging President Trump to remove ISDS from the North American Free Trade Agreement (‘NAFTA’) and omit it from future trade agreements.
In the face of a tidal wave of discontent reform was, it may be argued, inevitable. Ecuador, India, Indonesia and South Africa, amongst others, have terminated or allowed bilateral investment treaties (‘BITs’) to expire in the last decade. Bolivia, Ecuador and Venezuela have withdrawn from the ICSID Convention. The EU and Canada jettisoned traditional ISDS, committing through the EU-Canada Comprehensive Economic Trade Agreement (‘CETA’) to seek to establish a multilateral investment court (‘MIC’). UNCTAD and UNCITRAL are actively examining IIA and ISDS reform. Brazil and South Africa have developed investment proposals that emphasize the use of alternative dispute resolution (‘ADR’). Such developments are indicative of a paradigm shift in the investment landscape.