In the end, states have the power to decide collectively what reforms to pursue, in what order and in what form. Individually, they will also have choice about which particular reform options to adopt.
This process is likely to end with a plural solution in which both models (ISDS and a permanent court), and possibly others, exist.
Several states participating in the UNCITRAL process have already adopted viable alternatives to ISDS.
Their submissions conclude that the system is detrimental to public budgets, regulations in the public interest, democracy and the rule of law.
The signing of an investment treaty involves a unilateral loss of sovereignty on the part of the host state, which is ultimately deemed necessary to attract foreign capital.
Maldivian courts will be obliged to enforce arbitration awards.
The traditional mechanism of investment arbitration between the investor and the host State has been under attack for some time now from a range of actors and for a variety of reasons.
The New York Convention is regarded as the most influential treaty in the area of international trade and international commercial arbitration.
Multinational companies will increasingly file massive cases against host countries when climate change policies affect their profits, Nobel Prize-winning economist Joseph Stiglitz said.
Caribbean States and investors are not only participating, but being harmed by the ills and abuses of the current system of ISDS.
The 37th session in New York was devoted to addressing and identifying some additional concerns and creating a workplan for carrying out phase three of the mandate—developing possible ISDS reform options.
If the investment regime is to be made supportive of development and overcome its legitimacy crisis confronting, something more is required than procedural reforms to ISDS.
A permanent Multilateral Investment Court pushed by the European Union could make ISDS worse by scaling it up.
ISDS lawyers appear to hold administrative positions within the working group and are represented in large numbers in the advisory bodies that have been established for the working group.
Advocates of ISDS (industrialised countries and lawyers from the ‘arbitration industry’) dominate the running of the Working Group and its advisory bodies. Civil society is underrepresented.
USMCA bears many resemblances to NAFTA, which has been cited as a driver of low-wage corporate outsourcing.
The principle that adjudicators must be independent and impartial is at the core of any adjudicatory mechanism. It plays an important role in Investor-State arbitration, where arbitrators typically sit for a short amount of time and are not career judges.
We wish to express our overarching concerns that international investment agreements and their ISDS mechanism have often proved to be incompatible with international human rights law and the rule of law.
The next meeting of a United Nations working group debating options for reforming investor–state dispute settlement (ISDS) will take place in New York from April 1 to 5.
Reform of investor-state dispute settlement (ISDS) is being deliberated at the United Nations Commission on International Trade Law (UNCITRAL) Working Group III, which will be meeting in New York between the 1st and 5th of April 2019.