Designing Investment Dispute Settlement à la Carte: Insights from Comparative Institutional Design Analysis

(2019) 18 Law & Practice of Int’l Courts & Tribunals 311-341

Amsterdam Law School Research Paper No. 2020-03

Amsterdam Center for International Law No. 2020-02

26 Pages Posted: 17 Jan 2020

See all articles by Stephan W. Schill

Stephan W. Schill

University of Amsterdam

Geraldo Vidigal

University of Amsterdam

Date Written: 2019

Abstract

The multilateral expression of the desire to reform investor-state dispute settlement (ISDS) at the United Nations Commission on International Trade Law (UNCITRAL) obscures the diverging preferences states have in respect of which future dispute settlement model to adopt. In order to garner broad acceptability, this article proposes that the reformed system could be designed as ‘dispute settlement à la carte’, with a Multilateral Investment Court coexisting with other forms of dispute resolution under the umbrella of one multilateral institution. With a view to showing that such a system is feasible, this article draws on comparative institutional design analysis, that is, a comparative assessment of dispute settlement design features across different international dispute settlement systems. This approach helps to explore what institutional design features are a useful source of inspiration for a future investment dispute settlement system that preserves flexibility for states in the choice of their preferred means of adjudication, while safeguarding legal certainty and promoting coherence in investment dispute settlement.

Keywords: investment dispute settlement reform, United Nations Commission on International Trade Law (UNCITRAL), comparative law, multilateral investment court, investor-state arbitration, multilateralism, international investment law

JEL Classification: K33

Suggested Citation

Schill, Stephan W. and Vidigal, Geraldo, Designing Investment Dispute Settlement à la Carte: Insights from Comparative Institutional Design Analysis (2019). (2019) 18 Law & Practice of Int’l Courts & Tribunals 311-341 ; Amsterdam Law School Research Paper No. 2020-03; Amsterdam Center for International Law No. 2020-02. Available at SSRN: https://ssrn.com/abstract=3519259 or http://dx.doi.org/10.2139/ssrn.3519259

Stephan W. Schill (Contact Author)

University of Amsterdam ( email )

Spui 21
Amsterdam, 1018 WB
Netherlands

Geraldo Vidigal

University of Amsterdam ( email )

P.O. Box 1030
Amsterdam, 1000 BA
Netherlands

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