This panel was convened at 9:00 a.m., Friday, April 10, by its moderator Andrea K. Bjorklund of McGill University Faculty of Law, who introduced the panelists: Mark Kantor of Georgetown University Law Center; Ursula Kriebaum of the University of Vienna; Simon Lester of the Cato Institute; and Jason Yackee of the University of Wisconsin Law School. *
INTRODUCTORY REMARKS BY ANDREA K. BJORKLUND ([dagger])
Given the intense attention devoted to investor-state dispute settlement (ISDS) in Europe and in the United States, this panel could not be timelier or more important. We engaged in a roundtable discussion of some of the most debated topics in investment arbitration, including questions about the role of investor-state dispute settlement in the international investment regime; the concerns that people have expressed about investor-state dispute settlement, alternatives to investor state dispute settlement, and, more broadly, alternatives to investment treaty protections generally. One of our panelists, Ursula Kriebaum, memorialized her answers to the questions she addressed as follows.
IS ISDS BENEFICIAL OR DANGEROUS FOR THE RULE OF LAW BOTH IN THE INTERNATIONAL AND THE NATIONAL SPHERES?
By Ursula Kriebaum ([double dagger])
The rule of law today is a concept used by many in many different ways and we do not have the time to enter into a debate what exactly should be understood by it.
Only if you understand the rule of law to hold that national law is preeminent, no matter what it says, would ISDS be considered to be "bad." However, if you define rule of law as giving preeminence to predictability of norms, due process, and transparency, it is clearly beneficial in the international and national sphere.
Let me start with predictability of the content of international standards. Three options exist to achieve predictability of the normative content of international standards of protection:
The original choice of states creating investment protection treaties was to opt for general terms and leave it to the case law to specify them. This has led to the development of a number of criteria by tribunals, for example for fair and equitable treatment. Although some of the criteria were regularly followed we can also witness conflicting case law, e.g. on most-favored-nation-treatment, indirect expropriation, etc.
More recently a number of states, including Canada and the United States, have adopted definitions. Examples of this approach are definitions of the method for establishing an indirect expropriation and the inclusion of a regulation exception with regard to indirect expropriations. The European Union and Canada have followed this approach in the Comprehensive Economic and Trade Agreement (CETA). The European Union and Canada have used the same method for fair and equitable treatment in the CETA and have defined the standard by including a list of acts that would lead to a breach of the standard. It is likely that the negotiators of the Transatlantic Trade and Investment Partnership (TTIP) will also follow suit with regard to both standards.
A third option, which we will discuss later, is an appeals facility. To achieve predictability it would be necessary that there be only one appeals facility for all of the different investment protection treaties.
Let me now turn to predictability of government conduct as a...