Thursday, December 12, 2019

Business views on policy choices - ISDS and policy uncertainty

Investor State Dispute Settlement (ISDS) has normally been seen through the prism of State and governments. The study of bilateral investment treaties and the impact they have on countries policy space has been one of the driving narratives of the debate. The debate at UNCITRAL on creating the right international legal framework for ISDS seeks to address the legitimacy crisis that States have raised.

What about actual businesses? How do they view investment treaties? How much does ISDS figure in their business strategies?

This survey being sought from businesses on ISDS caught my attention.
So far, the discussion has been limited to the perspectives of states and investors’ voice risks not being heard. As investors are users of the ISDS system as well as states, and the system was established to incentivise and protect foreign investment, QMUL and CCIAG’s survey is seeking their input to facilitate the discussion on reform proposals. We are looking to hear in-house counsel and management representatives and hear how the current system works (or does not work) for them and which reforms to the current system may help resolve disputes and promote foreign investment.
 The World Economic Forum has an annual CEO survey. This also gives a good account of what CEOs are thinking on what affects their businesses globally. Over-regulation, policy uncertainty and trade conflicts are in the top 5 threats that CEOs see related to the ese of doing business.

Image result for Annual Global survey 2019, image
I am not sure if substantive provisions of bilateral investment treaties and ISDS provisions are part of the policy uncertainty paradigm?