Regardless if you see it as being catastrophic or simply weird, for many and varied reasons, 2016 looks set to be a most memorable year. For arbitration lawyers, it could be marked as the year in which investor-state arbitration became a talking point. How do we know this? Well, because 2016 was the year in which BuzzFeed – otherwise known for pop culture, listicles, and lots and lots of cats – published a four part series on investor state dispute settlement (ISDS), entitled Secrets of a Global Super Court.
Amplifying the sense of injustice suggested by the title, the article opens with an invitation to “Imagine a private, global super court that empowers corporations to bend countries to their will”.
Unsurprisingly the tone of the articles is unremittingly hostile to investor-state arbitration, laying out criticisms that it is overly favourable to corporations, that its decisions are opaque. That allowing lawyers to shuffle between arbitrator and counsel roles is akin to them having a “vested interest in expanding the court’s authority”, that shell companies are being formed specifically to take advantage of differing international treaties, and that lawsuits, or the threat of them, is at the same time placing an unfair burden on poorer countries and placing a regulatory chill on their future social and environmental policies. Continue reading