Mending the Wound or Pulling It Apart? New Proposals for International Investment Courts and Fragmentation of International Investment Law
Robust discussions on standing investment courts are currently taking place at various fora. In particular, negotiations to include bilateral investment courts in IIAs are in full swing and leading to the creation of such courts. On the other hand, negotiation for a multilateral investment court has yet to start. Even if negotiation begins, it is not clear how long it will take and whether it will indeed lead to a successful conclusion. As such, for a significant amount of time in the future, it is bilateral investment courts that states administer to resolve investment disputes. Bilateral investment courts, however, will further deepen the already existing fragmentation of international investment law. They will be unable to issue harmonized and consistent jurisprudence for similar or essentially the same legal issues. In addition, they will more easily stoke sovereignty infringement claims by domestic critics. If legitimacy enhancement is the ultimate objective of the present ISDS reform discussions, it will only be achieved through a multilateral court. This is the only alternative to address the basic concern that has prompted the ISDS reform debates in general and the court proposals in particular. Global efforts should be mobilized to initiate and conclude negotiations for the establishment of a multilateral court as promptly as possible. In the interim, current negotiations to create and adopt bilateral courts should be suspended.