The future of ISDS is at a historic crossroads. In this final chapter we provide an overview of the ISDS reform process in the UNCITRAL and discuss the EU proposal for a Multilateral Investment Court in the context of this reform. First, we contextualise the current ISDS reform against earlier attempts to negotiate multilateral international investment agreements to explain how the current reform is different. Second, we discuss the scope of the reform and its process in the framework of UNCITRAL, particularly focusing on the identified ISDS concerns. Third, we outline the reform options that have emerged in the discussion and explain their correlation to the EU’s MIC proposal. In the final part of this chapter, we consider the potential contributions that an MIC could make to the rule of law and the legitimacy of international investment law. While the negotiations are set to conclude in 2025, the aim of this chapter is to place the EU’s proposal in the broader ISDS reform context and reflect on its external challenges in this reform process.

Public and political controversies over Investor–State Dispute Settlement (ISDS) have prompted reform processes at international and regional levels. As an emerging actor in this field, the European Union (EU) has been particularly active in shaping new developments, within and outside the EU, and proposing the establishment of a Multilateral Investment Court (MIC). This research examines the underlying reasons and ways in which the EU has been shaping the field of international investment law (IIL) in order to address its own and global ISDS problems. The analysis of EU law and policy solutions envisioned to reform investment law in this book is undertaken in light of the IIL controversies, the EU constitutional and legal framework and the rule of law and legitimacy, as the normative goals of the ISDS reforms. In doing so, this book evaluates the contribution of the EU to the development of international law in the field of investment.

The epilogue concludes the book by summarizing the book’s key findings. In particular, it draws out five categories of implications following the book’s examination of coherence. These implications relate to fundamental aspects of international legal practice, including, crucially, to conceptual understandings of law, doctrine, epistemology, professional ethics in investor-state dispute settlement, and future institutional design in investor-state dispute settlement.

Concerns of incoherence surrounding investor-state decisions have been widely discussed by scholars over the past several years and have moreover been overwhelmingly raised by state delegations during the UNCITRAL Working Group III discussions on investor-state dispute settlement reform. In the coda, the discussion is briefly brought back to its beginnings and the topic of investor-state dispute settlement reform. Are there any conclusions in relation to reform that may usefully be drawn from the book’s discussion? The coda argues that states may be required to reframe and recontextualise their understanding of the concept of coherence in light of the book’s overall analysis. In so doing, they may also be required to address coherence from the ‘bottom-up’ rather than the ‘top-down’.

Coherence is a highly valued notion in law and it is especially sought after in investor-state dispute settlement. At the same time, coherence is a largely underexplored concept in international law literature. The introductory chapter serves to set the stage for the book’s investigation. To that end, the chapter outlines: (i) the impetus behind the choice of coherence as a subject for inquiry; (ii) the principal, so-called ‘bottom-up’ perspective from which the subject of coherence is examined in the book; and (iii) the core thesis advanced in relation to the dual, substantive and methodological, nature of coherence and its role in judicial reasoning in investor-state dispute settlement.

No governing international text or generally accepted doctrine defines the procedure to be applied by international courts and tribunals. Yet these institutions’ tasks pose common challenges: providing notice of a dispute, defining its nature and scope, determining the legal rules, marshalling and assessing evidence, finding facts and applying legal rules to them, and then recording and communicating the result. There often is substantial similarity – indeed, convergence – in how courts and tribunals go about these tasks. This chapter examines some of the factors and institutions that contribute to this procedural harmonization among institutions dealing with disputes between parties from different countries and legal cultures. It looks at the shared historical foundations of important procedural practices, the influence of intergovernmental and nongovernmental organizations, the roles individuals sometimes play in transmitting “legal technology” between institutions, and the effect of competition among institutions seeking to meet the needs of their “customers.” It also notes areas where procedure can diverge, as users look for new ways to address procedural problems.

Godwin’s chapter considers the experience to date of convergence in the area of financial law and, specifically, the UNCITRAL Model Law on Cross-Border Insolvency (‘Model Law’). In particular, the chapter examines the factors that prevent convergence in the area of financial law or, to put it differently, the factors behind divergence. It is suggested that through an examination of these factors, it is possible to assess the practicalities – and the relative merits - of convergence. Such an examination also offers insights into the appropriateness of mechanisms that might be used to achieve convergence and the extent to which the mechanisms need to be tailored to the particular circumstances or legal terrain. The experience of the Model Law shows that full convergence in law (in terms of absolute uniformity) is neither realistic nor practicable and that there is a need to accept a degree of divergence in law between jurisdictions. It also suggests that divergence in law is not a negative as it often leads to convergence in outcomes. Further, divergence – or diversity - is positive if it achieves convergence in outcomes that could not otherwise be achieved as a result of fundamental differences between national legal systems.

A number of questions arise when disputes occur between corporations in two different countries to be settled by arbitration in a third country. First, if a dispute arises, and one of the parties refuses to arbitrate, where is such an arbitration agreement to be enforced? Second, which court will have such jurisdiction? Third, if there is an arbitration that leads to an award of damages and costs, how is that award to be enforced against the losing party if the losing party refuses to voluntarily implement the award? Fourth, again, which court has such jurisdiction? It was in these circumstances that various international rules, treaties and conventions were enacted. Hwang traces the success of two remarkable uniform law instruments – the New York Convention and the UNCITRAL Model Law on International Commercial Arbitration – the cornerstones of international commercial arbitration. He notes the reasons for their relative success and widespread adoption, and while highlighting shortcomings, reflects whether these are fundamental enough to require revision of the instruments. Hwang concludes that while not perfect, nothing ever is: both instruments are exemplary in their goal to harmonise and improve arbitration laws.

This chapter discusses the tension and synthesis between uniform law and legal pluralism. This is done by highlighting aspects of the production and circulation of uniform commercial law, using the example of international sales law and the law related to electronic transactions. It is argued that uniform law is of increasing importance in the production and circulation of legal models. Given so, it is desirable to make the uniform legislative process more efficient and effective than it currently is. Solutions are proffered.

There have been increasing and stronger calls for greater integration of many Asian economies, either within the confines of ASEAN or on a more geo-economically strategic scale that would include major Asian jurisdictions like China, Japan, and Korea. A number of key personalities within the regional legal fraternity have advanced views that such integration ought to occur through the harmonization of legal rules, arguing amongst others that in so doing uncertainty and other transaction costs would be reduced and commercial confidence within the region concomitantly increased. That commercial law has come under the lens as a particularly suitable candidate for harmonization is, in a sense, unsurprising. It is for one ostensibly seen as a technical and relatively uncontroversial area of law, as opposed, for instance, to public law. For another, or probably for that precise reason, this area has been the historical choice for attempts at harmonizing substantive law – think of the CISG, the UCC in the United States or the recently proposed CESL in the European Union. This edited volume brings together eminent and promising scholars and practitioners to investigate what convergence and divergence means in their respective fields and for Asia.

At a time of global uncertainty in trade and investment regimes, Singapore’s investment policy-makers have been involved in negotiating ‘next generation’amendments to the Singapore-Australia Free Trade Agreement, while also resurrecting a familiar framework where necessary or expedient – i.e., bifurcating EU-Singapore trade and investment commitments into two separate agreements; namely, the EU-Singapore Free Trade Agreement and EU-Singapore Investment Protection Agreement.Singapore Courts are also prepared to review investment treaty-based arbitral awards afresh. Kingdom of Lesotho v Swissborough Diamond Mines is the second case where an investor-State arbitral tribunal’s award was closely scrutinized by the country’s apex court, and the in this instance the Singapore Court of Appeal held that the arbitral tribunal did not have jurisdiction and ultimately set aside the arbitral award. Analyzing these developments, this chapter suggests that Singapore is emerging as a standard-setter in investment policy and investor-state dispute settlement jurisprudence via the interpretation of investment-related treaty provisions.

Historically the resolution of claims under investment treaties has been confidential and private.Over the past fifteen years, however, there have been changes that require greater transparency in the arbitration of disputes under investment treaties.The development with the potential to effect the greatest change in this regard is the recent work of UNCITRAL, through its new Rules on Transparency in Treaty-based Investor-State Arbitration and the treaty designed to give those rules wide application to existing investment treaties (the ‘Mauritius Convention’). This chapter outlines the drivers of change regarding transparency in investor-state arbitration and looks critically at the role of Asian States in this process.While Asian States have been active in the development of treaty policy in a variety of substantive and procedural areas, they have been ambivalent with respect to developments on transparency.In the UNCITRAL negotiations, Asian States expressed considerable doubts about both the need for the Rules on Transparency and the Mauritius Convention.This chapter considers the arguments raised in that context, as well as current Asian State practice, and suggests that the unwillingness of States in Asia to undertake transparency obligations may severely curtail the promise of UNCITRAL’s work.

Maria Panezi explains in Chapter 9 that Indigenous peoples are frequently included in social procurement programs as part of government efforts to correct past injustices and offer assistance towards a better economic future. Both the empowering and the redistributive outcomes of government procurement are equally important for Indigenous peoples and should be immediate priorities of governments that need to advance economic equity. There have been efforts to create a robust procurement regime for Indigenous peoples in various national contexts, especially in Canada, the US, Australia and New Zealand. These programs are works in progress and need to be both supported and evaluated continuously to allow for adaptation. This chapter serves as necessary background for the re-evaluation of transnational (local, provincial, regional, federal and cross-border) procurement policies for Indigenous businesses and service providers.