The basis of a claim in ISDS is always the applicable international investment agreement. There would always be differences and inconsistencies with an appellate mechanism.
As observers of the UNCITRAL process, we watch the debates with great interest, writing about the emergence of different camps, giving perspectives on how the process fits within broader geopolitical developments, and offering potential models for moving forward.
We civil society organizations and trade unions from the African continent express our concerns about the proposal presented by the European Union to establish a multilateral investment court and support further reaching reforms of ISDS.
The UNCITRAL Working Group III turned squarely to designing permanent institutions: a standing appellate mechanism and a multilateral investment court (MIC).
The US government used to be the chief proponent of strong investor protection clauses in international trade deals. No longer. What happened?
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.