Reform and Retrenchment in International Investment Law

27 Pages Posted: 9 Feb 2021

See all articles by James Thuo Gathii

James Thuo Gathii

Loyola University Chicago School of Law

Date Written: January 13, 2021


These Keynote Remarks were prepared for the Santander Roundtable Discussions on International Economic Law, co-hosted by Kenyatta University School of Law, (Nairobi); Riara Law School, (Nairobi); and the International Investment Law Center, at University of Cologne, January 13, 2021. The main claim is that the ISDS-centric focus of the current UNCITRAL Working Group III and ICSID Rule processes do not deal with some of the most fundamental challenges international investment law poses. These challenges are: How rights conferred on investors by international investment law effectively undermine domestic regulatory choices; How international investment law creates an asymmetrical private system of justice in which only investors have rights, whereas States are duty-bearers with no rights; How ISDS cases, and even the threat of investors bringing ISDS claims, creates a regulatory chilling effect; and how reform processes overlook market failures arising from the incentive structure of the international investment law system, allowing investors to externalize massive environmental, human rights and other costs. Perhaps therefore, the ISDS centric nature of the reforms raises the possibility that this reform process has the hallmarks of the most organized constituencies that benefit from its continuation.

Keywords: International Investment Law; ISDS; Investors; Externalities; Human Rights; Environment

Suggested Citation

Gathii, James Thuo, Reform and Retrenchment in International Investment Law (January 13, 2021). Available at SSRN: or

James Thuo Gathii (Contact Author)

Loyola University Chicago School of Law ( email )

25 East Pearson
Chicago, IL 60611
United States

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