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Who's Afraid of Reform? Beware the Risk of Fragmentation

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With multilateral negotiations to reform investor-state dispute settlement (ISDS) now underway, it is legitimate to wonder about the outcome. Many seem to hope for a single, global reform, but that may be unrealistic in the near future. Indeed, the article by Sergio Puig and Gregory Shaffer and the essay by Anthea Roberts both suggest that states are pursuing a wide range of changes to the current system, some of which are incompatible with one another. A number of states prefer investment arbitration. Others favor an investment court. Still others reject international dispute settlement altogether. In this essay, I identify a collection of these options and argue that their number and variety, combined with the intensity of state preferences on the matter of ISDS reform, are likely to preclude a multilateral solution for the foreseeable future and lead to continued fragmentation.

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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 I find Roberts's taxonomy useful and will therefore adopt it for purposes of the ensuing discussion.

6 See also Roberts, supra note 2.

8 In light of Opinion 2/15 of the Court of Justice of the European Union, the investment chapter of the EU-Singapore and EU-Vietnam FTAs has been separated from the rest of the agreement. Modifications to the final text of the investment chapter appear to be still forthcoming, at least in the case of the EU-Vietnam IIA.

9 UN Conference on Trade & Dev., World Investment Report 17 (2018).

10 Bilateral Investment Treaty Between the Government of the Republic of India and ___ art. 14.3 (emphasis added) [hereinafter Indian Model BIT].

11 Id. (emphasis added).

12 Joerg Weber & Catharine Titi, UNCTAD's Roadmap for IIA Reform of Investment Dispute Settlement, 21 N.Z. Bus. L.Q. 319, 326 (2015).

14 Investment Guarantees: Overview, Multilateral Investment Guarantee Agency.

15 Twelve states have ratified the ICSID Convention since 2009.

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  • ISSN: -
  • EISSN: 2398-7723
  • URL: /core/journals/american-journal-of-international-law
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