Originally from Investment Treaty Arbitration and International Law - Volume 18

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I. INTRODUCTION

Before setting out my arguments in detail, I need to outline my “caveats” or “premises” for my position(s) and the disposition of my arguments:

1. “True or false” can be expressions in part or in whole, with reservations and pre-conditions. 

2. “The legitimacy crisis” is any contemporary criticism of investment arbitration’s contemporary performance and standing as an institution of dispute settlement of investor-State disputes (ISDS), on the one hand, and of international investment law (IIL), on the other hand. This paper, and therefore my arguments, deals only, as does UNCITRAL WGIII, with the legitimacy crisis of ISDS and not the criticism of the IIL. This is a significant caveat. 

3. “The work of UNCITRAL WGIII” is but one expression of broader reform work, but nevertheless due to the body’s standing the mainstream reference to the entire response to the so-called “legitimacy crisis” in investment arbitration. Thus, any reference to UNICTRAL WGIII is a reference transcending only the work therein.

4. “To solve” is a redressing of one or more of the contemporary criticisms by an acceptable and agreed-to reform of ISDS.

To set-out my arguments effectively, following the introduction, the paper will be structured as follows: in Section II, a short answer to the question asked will be presented; in Section III, an overview of the context, object, and purpose of ISDS will be provided; in Section IV, contains an elaboration of what the legitimacy crisis is perceived to be; in Section V, an analysis of what UNCITRAL WGIII is and what it has done to solve the crisis will be offered; and finally Section VI contains concluding remarks.