Clearing the Path: Withdrawal of Consent and Termination as Next Steps for Reforming International Investment Law

Open Access

Abstract

This is a crucial moment in international investment policymaking. Two factors have converged, calling for a new direction. First, it has become increasingly difficult to justify investor-state dispute settlement (ISDS); even governments that had been among its strongest proponents are now changing course and have raised a range of fundamental, systemic and inter-related issues relating to ISDS. Second, policy makers and other stakeholders have a greater awareness of the need to design appropriate policies to maximize the contributions cross-border investment can make to sustainable development. Influenced by these factors, various reform efforts related to investment policy are underway at the national, regional, and international levels. These discussions about reform are likely to be slow, and outcomes uncertain. In the meantime, governments and their stakeholders remain tied to an outdated system that is widely acknowledged to be ill-suited for modern investment policy objectives, with increasingly concerning consequences. This policy paper explores two near-term options that governments engaged in reform discussions can pursue, alongside longer-term work on substantive and procedural reform. These options are: (1) a joint instrument on withdrawal of consent to arbitrate; and/or (2) a joint instrument on termination. The paper examines how both options could be implemented, and makes the case for putting a pause on ISDS to ensure that investment treaties and their dispute settlement mechanisms achieve their desired ends, produce legitimate decisions, and do not undermine international economic cooperation and sustainable development more broadly. In connection with ISDS reform efforts proceeding in UNCITRAL's Working Group III, CCSI submitted Draft Treaty Language: Withdrawal of Consent to Arbitrate and Termination of International Investment Agreements, which sets forth specific treaty language that can be used to (1) amend existing international investment agreements to withdraw consent to investor-state arbitration (leaving in place substantive protections, which can be enforced through state-state arbitration, or permits consent to investor-state arbitration on an case-by-case basis) or (2) terminate existing international investment agreements.