Book Description

In response to the recent outcry against the investor-state dispute settlement (“ISDS”) system, the negotiators to the proposed EU-U.S. Transatlantic Trade and Investment Partnership (“TTIP”) have developed an alternative means of investment dispute resolution: the so-called Investment Court System (“ICS”). News agencies, political leaders, and legal scholars have published myriad reactions to the proposal, many of them mixed. But relatively few have asked whether TTIP's negotiators should consider any alternative solutions to ISDS's problems, or whether any such opportunities even exist. To that end, this Note evaluates the ICS in light of the most cogent critiques lodged against ISDS, before considering three alternative modes of investment dispute resolution: a return to the pre-ISDS era, the adoption of a rule-of-law ratings mechanism, and a reformed and updated version of ISDS. Due to the problems inherent in the design of the ICS, including most notably the possibility that its judges would be beholden to state interests, this Note argues that it presents an imperfect solution to ISDS's critiques. Instead, a revised version of ISDS, updated to incorporate certain cost-reduction strategies, regulatory safeguards, and a multilateral ISDS appellate mechanism, theoretically offers the most promising long-term avenue for dealing with the unique circumstances inherent in investor-state disputes. However, because of the practical and political realities of TTIP, namely the souring of public sentiment towards anything ISDS, the most viable solution open to negotiators is a return to the pre-ISDS era.