Trends and Challenges in the Legal Harmonisation of ISDS

Abstract

The creation of international law has moved from the traditional state-centred model to a multilateral process where states, judiciary, private tribunals, international organizations and other non-state actors all jointly contribute to the development of international law across a range of fora. The combined roles of government and non-state actors and their interaction within the legislative development process become especially apparent in the growing area of international investment law and investment disputes.

The current landscape of international investment law consists of thousands of different international trade and investment agreements with differing provisions, resulting in a fragmented legal framework that hinders the development of uniform principles in the field and leads to the criticism the system faces today. As a result, the UNCITRAL has been given a broad mandate to identify and address concerns regarding ISDS. The different stakeholders directly or indirectly affected by the system create a tension in the harmonised regulation of the field, the current work on the ISD reform nicely reflecting the correlation between the top-down approach and a bottom-up influence over legal harmonisation, which today appears to have taken a rather multidimensional shape.

Keywords: ISDS, Legal Development, International Law