What is it about?
Investor-state arbitration has become a complex legal regime in which foreign investments must be accommodated with needs beyond the purely economic sphere–e.g., health, environmental, social and labour issues. The current efforts of reform undertaken by the European Union, the United Nations Commission on International Trade Law (UNCITRAL), and the United Nations Conference on Trade and Development (UNCTAD) display significant commitments towards justice-oriented choices that would factor in non-economic needs. This paper examines if these efforts are enough to reach this end.
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Why is it important?
Many reform processes have predominantly focused on the unintended consequences generated by the judicial discretion bestowed by states upon arbitral tribunals to resolve investment disputes. These attempts at reform remain praiseworthy, but I would argue that the time is ripe for a justice-oriented reform to address the structural problems long affecting investor-state arbitration. The paper reveals that the current processes of reform only partially hit this mark. Hence there is a need for adequate reforms that would face the elephant in the room—i.e. the unjust asymmetry of the investment system, which assigns only rights to investors and obligations to states.
Perspectives
In this article I explored justice as a justification for action and reciprocity. The latter is particularly congruent in investment law, where there is a risk that one (foreign investor) arrogates to oneself a specific status one denies to others (domestic investor). I hope this research engages policymakers and governments in a dialogue over investment arbitration issues that affect the lives and rights of citizens and parties having no standing in the process.
Maria Laura Marceddu
King's College London
Read the Original
This page is a summary of: EU and UN Proposals for Reforming Investor-State Arbitration, February 2024, Brill,
DOI: 10.1163/9789004693722_014.
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