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A Trinity Analytical Framework for ISDS Reform

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The American Journal of International Law’s recent articles on the reform of investor-state dispute settlement (ISDS) make important contributions to ongoing debates. The article by Sergio Puig and Gregory Shaffer elaborates on the methods of investment dispute resolution—the various institutional innovations that states might pursue to improve the system. The essay by Anthea Roberts in turn explores the subjects of investment dispute resolution—states and their varying positions on reform. In our essay, we supply a third perspective by discussing the objects of ISDS—that is, the disputes themselves, which vary considerably from one case to another. We believe that considering methods, subjects, and objects together—what we refer to as a “trinity analytical framework”—could assist states as they formulate their positions in the reform process going forward. At the same time, we do not think that all reform options are equally meritorious, and we critique Puig and Shaffer's proposal for complementarity between municipal courts and international mechanisms as at best premature.

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
References
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1 Sergio Puig & Gregory Shaffer, Imperfect Alternatives: Institutional Choice and the Reform of Investment Law, 112 AJIL 361 (2018).

3 Puig & Shaffer, supra note 1.

4 Roberts, supra note 2.

5 One of us first proposed the matrix analytical framework in a presentation at the 24th Energy Charter Ministerial Conference, held in Cyprus. See Wenhua Shan, A Matrix Analysis on ISDS Reform: Preliminary Considerations (Dec. 2013). An article developed on the basis of this presentation is forthcoming. See Wenhua Shan & Peng Wang, A Matrix Analytical Framework for Investment Disputes and Their Settlement, 33 ICSID Rev. (forthcoming 2018).

6 See, e.g., Burlington Res., Inc. v. Ecuador, ICSID Case No. ARB/08/5; Murphy Exploration & Prod. Co. Int'l v. Ecuador, ICSID Case No. ARB/08/4.

7 See, e.g., CMS Gas Transmission Co. v. Arg., ICSID Case No. ARB/01/8; Azurix Corp. v. Arg. (I), ICSID Case No. ARB/01/12; Siemens A.G. v. Arg., ICSID Case No. ARB/02/8.

8 See Philip Morris Asia Ltd. v. Austl., PCA Case No. 2012-12.

9 Wenhua Shan, Toward a Multilateral Plurilateral Framework on Investment, The E15 Task Force on Investment Policy 8–9 (Nov. 2015).

10 Puig & Shaffer, supra note 1, at 407.

11 World Justice Project, Rule of Law Index 2017–2018, at 20 (June 2018).

12 Id. at 22–23.

13 Id. at 44.

14 See UN Conference on Trade & Dev., Investment Policy Hub: International Investment Agreements Navigator (providing statistics).

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  • EISSN: 2398-7723
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