Assessing Treaty-Based Investor-State Dispute Settlement: Abandon, Retain or Reform?

Transnational Dispute Management, Vol. 11, No. 1, pp. i-iv, 2014

Sydney Law School Research Paper No. 13/40

29 Pages Posted: 17 Jun 2013 Last revised: 17 Aug 2015

See all articles by Christian Campbell

Christian Campbell

Center for International Legal Studies

Sophie Nappert

Three Verulam Buildings

Luke R. Nottage

The University of Sydney Law School; The University of Sydney - Australian Network for Japanese Law

Date Written: June 14, 2013

Abstract

Treaty-based investor-state dispute settlement (ISDS) is attracting increasing public debate. Particular concerns involve treaty provisions allowing investors from the home state to initiate arbitration claims directly against the host state for allegedly violating substantive rights (eg relating to expropriation) guaranteed by regional and bilateral investment treaties or free trade agreements.

Some commentators and a few countries now favour abandoning such protections altogether, leaving foreign investors to the vicissitudes of domestic law and court procedures in the host state, or of any inter-state process under customary international law or as agreed in investment treaties. Others suggest that treaty practice and international arbitrators' rulings are adequate, so no change is needed to this system. A third group seeks a middle way, proposing various procedural and substantive law reforms to re-balance private versus public interests involved in promoting and protecting cross-border investment.

This paper is based on an Open Letter derived from an online form publicised among those familiar with such international investment law issues. Almost all favoured the middle way, with considerable agreement on several possible reforms. These insights should prove useful in framing the ongoing debate, negotiations over new investment treaties, and perhaps even investor-state arbitration proceedings relating to existing treaties.

Keywords: International investment law, international arbitration, international law, dispute resolution, comparative law, Asian law

JEL Classification: K10, K30

Suggested Citation

Campbell, Christian and Nappert, Sophie and Nottage, Luke R., Assessing Treaty-Based Investor-State Dispute Settlement: Abandon, Retain or Reform? (June 14, 2013). Transnational Dispute Management, Vol. 11, No. 1, pp. i-iv, 2014; Sydney Law School Research Paper No. 13/40. Available at SSRN: https://ssrn.com/abstract=2280182 or http://dx.doi.org/10.2139/ssrn.2280182

Christian Campbell

Center for International Legal Studies ( email )

Matzenkopfgasse 19
5020 Salzburg
Austria

Sophie Nappert

Three Verulam Buildings ( email )

GRAY'S INN
London, WC1R 5NT
United Kingdom

Luke R. Nottage (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

The University of Sydney - Australian Network for Japanese Law

Room 640, Building F10, Eastern Avenue
Sydney, NSW 2006
Australia

Register to save articles to
your library

Register

Paper statistics

Downloads
636
Abstract Views
3,386
rank
40,647
PlumX Metrics