Reforming ISDS regime through the establishment of a multilateral appeal mechanism : some preliminary assessments

Details

Supervisors

Radi, Yannick

Faculty

Faculté de droit et de criminologie

Degree label

Master [120] en droit

Abstract

The last decade, ISDS has met with public outcry in the face of a strong opposition. The social perception is that foreign investors are granted with too wide and unacceptable powers in the sense that they are allowed to claim compensations, before tribunals seen as “pro-investors”, for damages resulting of regulations creating an alleged unfavorable context for investment while no appeal is possible and States, actually, regulate areas of public interest. Consequently, the EU started to advocate a broad reform of ISDS at the UNCITRAL by taking part to the discussions of the WG.III on the reform of the ISDS regime. Importantly, it has been formulating diverse possible answers and, in particular, it has proposed a procedural approach of the reform consisting in the creation of multilateral appeal mechanism taking the form of either (1) a stand-alone appeal or (2) a built-in appeal integrated in a two-tiered court mechanism for ISDS disputes. It is in this context that this paper seeks to discuss some preliminary assessments of a reform of investor-State arbitration through the introduction of an appeal mechanism taking the form of either (1) a multilateral stand-alone appeal mechanism or (2) an appeal mechanism integrated to a multilateral investment court.