A Multilateral Investment Court: Prospects and Promise
1 Rishi Gulati
Law Department - London School of Economics - University of London
Abstract
While some states have sought to incrementally reform investor-to-state dispute settlement (ISDS) since the early 2000s, the European Union has recently started advocating systemic reforms and proposed the creation of a Multilateral Investment Court (MIC). The proposed MIC is intended to comprehensively replace the arbitration-based framework implemented by the patchwork of international treaties (bilateral investment treaties and free trade agreements) that currently provide for the dispute resolution infrastructure for ISDS. I examine in detail whether a MIC is needed? And if yes, what should it look like? In addressing the first question, I discuss the factors that led to the proposal to establish the MIC, such as the backlash to the ISDS regime we are presently witnessing. Arguing that this backlash is to an extent misguided, there are nevertheless good reasons as to why establishing a MIC could be beneficial for investment law in particular, and international law in general. I will argue that in principle, creating a MIC could be a much needed intervention, and could help make ISDS consistent, transparent, independent and impartial. However, it is crucial that the institutional design of any future MIC is carefully considered and crafted. If a future MIC does not live up to the standards of independence and impartiality expected of a modern international court or tribunal, then there is little point in even contemplating such a reform as it is unlikely to fare any better than the current regime. In the second part of the paper, I thus argue that if a MIC is created, it is imperative that its institutional design ensures a minimum degree of independence and impartiality expected from an international adjudicative mechanism. These aspects include enshrining guarantees as to the institutional and individual independence of the MIC. Clearly, creating a MIC is resource intensive, time consuming and a significant shift to the current regime. If reform efforts are to be effective, guarantying judicial independence and impartiality should constitute a key feature of the proposed MIC. Ultimately, to address the legitimacy and credibility deficit in the prevailing regime, the real reasons for the backlash against it need addressing. Or else, the reform will just amount to changing the label as opposed to real and meaningful reform.
Keywords
Multilateral Investment Court
