BITs and ISDS reform discussions

For an account of new BITs and the influence of provisions relating to human rights and corporate social responsibility, this blog post is a useful reminder of the evolving nature of the legal framework of international investment arbitration.

Human rights considerations increasingly arise in discussions around the evolution of international investment law. IIAs continue to play a foundational role in this trend, as noticeably progressed by newly signed IIAs in 2019. The extent to which disputes arise under the abovementioned IIAs in the coming years, and whether such disputes include human rights considerations, will crucially bear on the trajectory of efforts to gradually align human rights and investment interests.

And for those following the ISDS debates at UNCITRAL, this is an update in the IELP blog regarding the dynamics of the multilateral discussions on ISDS reform:

Flexibility was another core theme arising from the January session. Continuing on the Working Group’s discussions in October, some delegates emphasized the need for an “open architecture”, and a “flexible approach”, that would enable states to pick and choose, via opt-ins or out-outs, from the reform outputs developed through the process. This approach has undoubted appeal in that, under it, no state would be required to accept a reform solution it does not wish to adopt. This can help maximize buy-in for the multilateral instrument, and potentially for a standing body, by allowing states to only opt into certain aspects, such as an appellate mechanism.