The Investor-State Dispute Controvery

By | November 27, 2014

I just published a short article on the current controversy regarding the rights of investors to invoke binding dispute settlement  proceedings again host governments. This is known as Investor-State Dispute Settlement or ISDS and is enshrined in hundreds of bilateral investment protection treaties around the world.

The issue has recently come to the fore with comments by German government representatives indicating opposition to these ISDS provisions in the recently-concluded trade and economic agreement between the EU and Canada. The newly-elected President of the EU and the new EU Trade Commissioner have also voiced misgivings over these special rights for private investors.

My article looks at those issues and suggests a couple of ways to meet these concerns. One is to allow for appeals from arbitration decisions, so that there is at least some recourse to a higher body where one side or another disagrees with the decisions of arbitration panels. The other is to institute permanent arbitration panels, to eliminate the ad hoc nature of these proceedings.

These don’t answer all the concerns being voiced. However, within the current framework of investor protection agreements, I suggest that this is a feasible approach for governments to examine.

To see my article click here.