Reformed ISDS

The investor-state dispute settlement (ISDS) mechanism has come under fire in the past few years. As a result of many controversial cases, civil society groups, international organisations, academics, lawyers and state officials have argued that the arbitration process has had a negative impact on public interest and is need of reform or should be scrapped altogether.

Therefore tweaked versions of the system have been proposed to avoid the most undesired “side effects” of standard ISDS rules. At least 45 countries and four regional blocs are revising or have recently revised their investment model agreements.

In 2012, South Africa, the government started to withdraw from its bilateral investment treaties and amended domestic legislation to make it compatible with BIT-like investor protections while incorporating exceptions where warranted by public interest considerations.

In 2014, Indonesia decided to terminate 67 bilateral investment treaties and has also been developing a new model BIT that supposedly reflects a more balanced approach between the country’s right to regulate and foreigner investor protection.

In 2015, the European Commission established a new ’Investment Court System’ to replace the current ISDS mechanism in its trade deals. The ICS has been incorporated in the EU deals with Canada (CETA) and Vietnam. It has also been proposed for the ongoing negotiations with Mexico, the Philippines and the US (TTIP). However many critics claim that this new system is largely window-dressing.

In December 2015, India released a revised model BIT which, for instance, requires investors to exhaust domestic remedies (Indian courts) before turning to international arbitration and leaves out “fair and equitable treatment” provisions.

In 2016, members of the Southern African Development Community (SADC) (Botswana, Lesotho, Mozambique, Namibia, South Africa and Swaziland) amended the SADC Finance and Investment Protocol that included ISDS provisions. The amendments eliminate the ISDS mechanism (only state-to-state arbitration remains) and narrow the scope of investors’ rights, including exclusion of “fair and equitable treatment”, limitations to “national treatment” to allow for local preferences, obligation for investors to follow host state domestic law and exception from investment rules for policies enacted to comply with international treaties.

In South America, experts from the Union of South American Nations (UNASUR) have been developing an investment settlement centre, as an alternative to the World Bank’s ICSID.

In 2017 states from around the world began to debate at UNCITRAL (United Nations Commission on International Trade Law) about the possible reform of the ISDS system in a way that would address legitimacy concerns and rebalance the system. As part of these discussions, the EU proposed the creation of a Multilateral Investment Court (MIC), which was slammed by civil society groups, as the MIC would “enshrine, expand, and entrench the current system of corporate privilege in future trade deals.”

Photo: Attac / CC BY-SA 2.0

March 2021

Lawyer Monthly | 23-Nov-2021
India’s steps to better protect itself hasn’t curbed the appetite of foreign investors, suggesting that the perceived correlation between FDI and robust investor protection is overstated.
Business Recorder | 25-Oct-2021
Under the new template, federal government would not be liable for private investor disputes. Mediation would be made compulsory, while foreign arbitrators would be decided in advance through consensus.
Dawn | 22-Oct-2021
Pakistan will renegotiate all bilateral investment treaties (BITs) on the basis of new BIT template being finalised by the government, a top official of the Board of Investment said.
OHCHR | 15-Oct-2021
UN experts today called on States to ensure that international investment agreements do not provide a “safe harbour” for investors to abuse the human rights of individuals and communities.
Lexology | 15-Oct-2021
Investor–state arbitration has grown over the years to become one of the most dynamic and controversial features of international investment law.
Rabble.ca | 23-Aug-2021
As governments try to phase out coal and leave fossil fuels in the ground, lawsuits from industry investors are starting to pile up around them.
South Centre | 11-Aug-2021
This policy brief highlights the need to allocate sufficient time to deliberate upon the important issues being raised by developing countries.
Third World Network | 10-Aug-2021
The broad mandate given by UNCITRAL focuses on a limited set of procedural issues that fails to address the substantive concerns over the crisis of legitimacy confronting the international investment regime, and ISDS more specifically.
Dawn | 13-Jul-2021
Pakistan Prime Minister has approved the new Bilateral Investment Treaty template whereby any dispute will now be remedied through local arbitration.
Collectif Stop Tafta | 29-Jun-2021
Les lobbies des entreprises ont commencé à faire pression sur la Commission européenne pour créer un nouveau système de justice parallèle, similaire aux anciens TBI intra-UE, mais compatible avec le droit européen.

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