Saturday, April 12, 2014

Investor State Dispute Settlement - Things heating up?

I usually do not write about investment issues. That is not my forte. However, have been coming across a lot of pieces on the issue of Investor State Dispute Settlement (ISDS) that caught my attention. The ISDS provision in an investment agreement essentially permits private investors to initiate a dispute against the State where it has invested in cases of alleged violations of the State's obligations under the investment treaty.

The IELP blog carried this piece on the latest Australian FTA with Japan that apparently does not have an ISDS provision. The recent example of this FTA establishes that the issue is not resolved and will continue to arise in international negotiations. The pros and cons of having ISDS provisions have been debated ad naseum. Two pieces on varying positions are an interesting read.

This piece called "Profiting from Injustice" essentially argues against having provisions of ISDS due a variety of reason including that it is fuelled by law firms, arbitrators and financiers and is essentially not neutral. 

Countering the above premise, a detailed piece in the Harvard Journal of International Law argues against the "re-statification" of investment state disputes essentially arguing in favour of the existing ISDS provisions.

A whole lot of literature, interests and impacts. Issues about what constitutes "neutrality" itself? is there a pro-investor or pro-state bias? What trend would coming bilateral, plurilateral agreements follow? Is there a middle ground?

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