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Published online by Cambridge University Press: 01 March 2021
Investment law and arbitration are currently the subject of profound reform discussions. Whether the investment law and arbitration reforms and reform proposals can properly be categorized as “old tools” that are used in “new ways,” and more generally whether the reforms in the end will result in a “new economic world order” remains however to be seen. I argue that the “old tools” in international investment law and arbitration are not always simply “old tools” or an exercise in conservativism. Notably when one looks at substantive norms in investment treaties, the apparent “old tools” have been perfected and modernized. In other instances, such as the proposal for an “investment court,” which could hardly be considered an “old tool,” reform proposals do not seem to radically shift the investment regime toward a “new economic world order.”
1 UN GAOR, 72nd Sess., Supp. No. 17, paras. 263–64, UN Doc. A/72/17 (2017).
2 UNCITRAL Working Group III (Investor-State Dispute Settlement Reform), Possible Reform of Investor-State Dispute Settlement (ISDS), Note by the Secretariat, 34th Sess. (Vienna, Nov. 27–Dec. 1, 2017) , para. 20, UN Doc. A/CN.9/WG.III/WP.142 (Sept. 18, 2017).
3 UNCITRAL Working Group III (Investor-State Dispute Settlement Reform), Possible Reform of Investor-State Dispute Settlement (ISDS), Note by the Secretariat, 38th Sess. (Vienna, Oct. 14–18, 2019) , paras. 5 et seq., UN Doc. A/CN.9/WG.III/WP.166 (July 30, 2019) [hereinafter UNCITRAL Working Group III 2019 Note by the Secretariat]. See also UNCITRAL Presentation of Reform Options, at https://uncitral.un.org/en/reformoptions.
4 European Commission, Concept Paper – Investment in TTIP and Beyond – the Path for Reform: Enhancing the Right to Regulate and Moving from Current Ad Hoc Arbitration Towards an Investment Court (May 2015).
5 See European Parliament Resolution of 8 July 2015 Containing the European Parliament's Recommendations to the European Commission on the Negotiations for the Transatlantic Trade and Investment Partnership (TTIP).
6 European Commission, supra note 4, at 11.
7 See UNCITRAL Working Group III 2019 Note by the Secretariat, supra note 3, para. 3.16.
8 See Eric De Brabandere, (Re)Calibration, Standard-Setting and the Shaping of Investment Law and Arbitration, 59 B.C.L. Rev. 2607 (2018).
9 E.g., India Model BIT, Art. 12 (2016).
10 E.g., Comprehensive Economic and Trade Agreement (CETA) Between Canada, of the One Part, and the European Union and its Member States, of the Other Part, Arts. 8.10, 8.12, 2017 OJ (L 11).
11 Martins Paparinskis, Masters and Guardians of International Investment Law: How to Play the Game of Reassertion, in Reassertion of Control over the Investment Treaty Regime 30–52 (Andreas Kulick ed., 2016).
12 See supra note 10.
13 See Eric De Brabandere, States’ Reassertion of Control Over International Investment Law: (Re)defining “Fair and Equitable Treatment” and “Indirect Expropriation,” in Reassertion of Control Over the Investment Treaty Regime, supra note 11, at 285–308.
14 For a discussion, see Joost Pauwelyn, At the Edge of Chaos? Foreign Investment Law as a Complex Adaptive System, How It Emerged and How It Can Be Reformed, 29 ICSID Rev. – FILJ 372–418 (2014).
15 Id.
16 M. Sornarajah, Evolution or Revolution in International Investment Arbitration? The Descent into Normlessness, in Evolution in Investment Law and Arbitration 631, 634 (Chester Brown & Kate Miles eds., 2011).
17 James Crawford, Chance, Order, Change: The Course of International Law 20 (2014).
18 See European Commission, Report: Online Public Consultation on Investment Protection and Investor-to-State Dispute Settlement (ISDS) in the Transatlantic Trade and Investment Partnership Agreement (TTIP) 14 (Jan. 13, 2015) (stating that “the collective submissions reflect a wide-spread opposition to investor-State dispute settlement (ISDS) in TTIP or in general”).
19 On this, see Eric De Brabandere, Investment Treaty Arbitration as Public International Law: Procedural Aspects and Implications 122 et seq. (2014).
20 It is noteworthy in this respect that the EU-Canada Free Trade Agreement Investment Court System indeed incorporates several features which have already been applied to arbitral proceedings. See, e.g., CETA, supra note 10, Art. 8.36 which incorporates the UNCITRAL Rules on Transparency in Treaty-Based Investor-State Arbitration.
21 European Commission, Investment Provisions in the CETA (Feb. 2016), available at http://trade.ec.europa.eu/doclib/docs/2013/november/tradoc_151918.pdf.
22 See De Brabandere, supra note 19.
23 See, e.g., CETA, supra note 10, Art. 8.27.
24 See the comments made by Judge Sir Christopher Greenwood, as reported in Lixin Chen and Aaron Yoong, Does Investor-State Arbitration Have a Future? Keynote Speech by Sir Christopher Greenwood, Kluwer Arb. Blog (Nov. 30, 2018), at http://arbitrationblog.kluwerarbitration.com/2018/11/30/does-investor-state-arbitration-have-a-future-keynote-speech-by-sir-christopher-greenwood/?doing_wp_cron=1596812519.3121669292449951171875.
25 De Brabandere, supra note 19, at 17 et seq.
26 Stefanie Schacherer, TPP, CETA and TTIP Between Innovation and Consolidation—Resolving Investor–State Disputes under Mega-Regionals, 7 J. Int. Dispute Settlement 628, 631 (2016).