Cutting the Gordian Knot: Investment Dispute Settlement à la Carte

Brief
Date period
21 November 2018
There is widespread consensus that investor-state dispute settlement (ISDS) is in need of reform. This consensus, however, obscures stark differences among states with respect to how to reform the current system of investment arbitration. This paper examines the different approaches proposed for investment dispute settlement reform by major players in the global North and the global South and considers both differences and commonalities between the different models – ranging from incremental changes that respond to specific criticisms of the ISDS system to the development of more comprehensive alternatives or the promotion of a multilateral investment court. In light of the incompatibility of the different approaches, the paper introduces the idea of “dispute settlement à la carte“ as a way forward. Such a model could provide a common framework for investment dispute settlement reform under one institutional umbrella, allowing different states and organisations to pursue different structural models for investment dispute settlement, while providing them with a platform that promotes convergence where possible.