Originally from Investment Treaty Arbitration and International Law - Volume 12

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While the use of investor-State arbitration as a method for international investment dispute settlement (‘ISDS’) has been booming in the past twenty-five years, the last ten have been marked by increased scrutiny and a growing sense that ISDS has entered a legitimacy crisis. Calls for reforms emanating from government, academia, civil society and even international arbitration practitioners, far from being ignored, have led to intense debates among the international investment and development community, with discussions reaching the highest levels of government in recent years.  This paper maps out the various concerns voiced by those who have been referred at the 2018 Annual Juris Conference as the ‘ISDS sceptics and opponents,’ and assesses whether and to what extent the current reform movement, in its different streams will, or indeed can, satisfy those sceptics and opponents. In keeping with the Annual Juris Conference tradition, this author was tasked with presenting the arguments in favor of a specific, assigned position, namely, that the new generation of international investment agreements (‘IIAs’) will not satisfy ISDS critics; instead, their roll-out is, regrettably, likely to abide by the law of unintended consequences.

Part I identifies the sceptics and opponents of ISDS, and maps out their objections to ISDS. It argues that they do not constitute a monolithic group; instead, this catch-all phrase refers to a plurality of divergent interests and sometimes irreconcilable views on what, exactly, is wrong about ISDS as we know it, and how to ‘fix’ it.