The International Investment Regime and Investor-State Dispute Settlement: States Bear the Primary Responsibility for Legitimacy

摘要

The global debate on the international investment regime is seeing the greatest challenge yet to its legitimacy. There is substance to elements of the criticism levelled at investment agreements and ISDS regimes. ISDS must be more transparent. Proper protection needs to be given to regulatory actions by states that are non-discriminatory and undertaken for legitimate public welfare objectives. The obligation to provide fair and equitable treatment needs to be elaborated so that the expectations of investors are properly tempered and the interpretative boundaries of the obligation are made clear to tribunals. States should also consider the strategic approach outlined in UNCTAD's World Investment Report 2015 to dealing with first generation BITs. The European Union has given significant new impetus to the concept of a permanent investment court system. States can and should act to strengthen the international investment regime. As the creators of the regime, states ultimately bear the primary responsibility for its legitimacy.