In light of the current debate on ISDS and the many criticisms voiced against the current system, this course will first briefly recall (i) the origins of and reasons for ISDS and (ii) its current legal framework. It will then proceed to a detailed review of (iii) criticisms expressed against the existing system, such as the lack of consistency of decisions, the lack of transparency of the process, and the lack of legitimacy and accountability of the system and of the arbitrators. It will examine (iv) whether these criticisms are justified, whether and why they matter for international trade and commerce, peaceful international relations, justice and the rule of law. On this basis, the course will then explore (v) reform options, some of which are currently envisaged by policy-makers and others which still need to be conceived. As a result of this exploration, the students will finally seek to design (vi) a roadmap for possible reform.
Competencies: Revisiting fundamental notions of arbitration in light of current criticisms against investor-state arbitration.
Skills: Investigate merits of criticisms and come up with solutions discussing their pros and cons.
Strategies: Draw up possible reform plan.