Reformed ISDS

The investor-state dispute settlement (ISDS) mechanism has come under fire in the past few years. As a result of many controversial cases, civil society groups, international organisations, academics, lawyers and state officials have argued that the arbitration process has had a negative impact on public interest and is need of reform or should be scrapped altogether.

Therefore tweaked versions of the system have been proposed to avoid the most undesired “side effects” of standard ISDS rules. At least 45 countries and four regional blocs are revising or have recently revised their investment model agreements.

In 2012, South Africa, the government started to withdraw from its bilateral investment treaties and amended domestic legislation to make it compatible with BIT-like investor protections while incorporating exceptions where warranted by public interest considerations.

In 2014, Indonesia decided to terminate 67 bilateral investment treaties and has also been developing a new model BIT that supposedly reflects a more balanced approach between the country’s right to regulate and foreigner investor protection.

In 2015, the European Commission established a new ’Investment Court System’ to replace the current ISDS mechanism in its trade deals. The ICS has been incorporated in the EU deals with Canada (CETA) and Vietnam. It has also been proposed for the ongoing negotiations with Mexico, the Philippines and the US (TTIP). However many critics claim that this new system is largely window-dressing.

In December 2015, India released a revised model BIT which, for instance, requires investors to exhaust domestic remedies (Indian courts) before turning to international arbitration and leaves out “fair and equitable treatment” provisions.

In 2016, members of the Southern African Development Community (SADC) (Botswana, Lesotho, Mozambique, Namibia, South Africa and Swaziland) amended the SADC Finance and Investment Protocol that included ISDS provisions. The amendments eliminate the ISDS mechanism (only state-to-state arbitration remains) and narrow the scope of investors’ rights, including exclusion of “fair and equitable treatment”, limitations to “national treatment” to allow for local preferences, obligation for investors to follow host state domestic law and exception from investment rules for policies enacted to comply with international treaties.

In South America, experts from the Union of South American Nations (UNASUR) have been developing an investment settlement centre, as an alternative to the World Bank’s ICSID.

February 2017

Curtis | 6-Nov-2018
Combined with the dispute settlement mechanism of international arbitration, investment treaties have been transformed intol "weapons of legal destruction."
PSI | 1-Nov-2018
Como representantes de las organizaciones de la sociedad civil global, reiteramos nuestra oposición inequívoca al régimen de solución de controversias inversionista-Estado (ISDS por sus siglas en inglés) y los derechos de gran alcance para los inversionistas extranjeros consagrados en los tratados de comercio e inversión.
SOMO | 30-Oct-2018
The UNCITRAL process runs a real risk of producing middle-ground solutions that will fail to address the fundamental flaws of the ISDS system and will only further institutionalise and re-legitimise the system.
| 30-Oct-2018
More than 300 civil society groups and trade unions urged governments participating in United Nations meetings in Vienna to completely overhaul the controversial Investor-State Dispute Settlement (ISDS) system.
No al TTIP | 29-Oct-2018
Canadá apoya la eliminación del sistema privado de resolución de controversias entre Estado-Inversor – ISDS – en el nuevo acuerdo con EEUU y México pero persiste en mantenerlos en otros acuerdos, como en el CETA.
Client Earth | 28-Sep-2018
ClientEarth has challenged a judgment regarding the European Commission’s decision to keep secret information about controversial investment tribunals in EU international trade deals.
Friends of the Earth Europe | 24-Sep-2018
Our analysis of the leaked draft code of conduct of CETA tribunals reveals that the same people known as ISDS arbitrators and counsellors will now take over CETA tribunals.
APWLD | 11-Sep-2018
“We call on our governments to either address the real reasons why ISDS is fundamentally flawed or to abandon its ‘reform’ agenda that is designed to reinforce and re-legitimise a self-serving investment dispute system.”
No al TTIP | 8-Sep-2018
El cambio climático está destrozando millones de vidas y ecosistemas. Los Estados tienen que dejar de proteger los intereses corporativos y asegurar que los combustibles fósiles se queden bajo tierra.
Vietnam Briefing | 28-Aug-2018
Vietnam and the EU have concluded their discussions on an Investment Protection Agreement, which they decided to keep it separate from their free trade agreement.

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