- Thursday 23 Nov 2023, 12:30 - Friday 24 Nov 2023, 19:00
- Spoken Language
- Theil Building
- Campus Woudestein
Is the world without investment arbitration, a world with(out) justice? Investor-State Dispute Settlement has been undergoing profound criticism for the past fifteen years. This has, in turn, generated a wave of initiatives and proposals for reform, either institutionally mandated (e.g., the work of the UNCITRAL Working Group III) or commenced by scholars and civil society organizations. These proposals range from minimal reforms of the current investment arbitration mechanism (e.g., introducing a code of conduct for arbitrators) to a complete eradication of the system. What these all have in common is the acknowledgment that the status quo is untenable and requires at least some degree of change.
Starting from these premises, the conference intends to push the ‘reform’ debate forward and interrogate what a ‘post ISDS’ world entails in terms of delivering ‘justice’.
The conference aims to address two key questions: (i) whether and, if so, (ii) what form(s) of ‘justice’ will feature in the post ISDS scenarios proposed thus far.
The conference will be structured along the following themes:
- The institutional architecture and implications of the different reform proposals, including the (re)turn to a full ‘privatization’ of ‘justice’ in investment disputes.
What are the salient features of the different proposals advanced so far? Will an ‘institutionalization’ of dispute settlement (e.g., MIC) significantly alter the perception of ‘justice’ of the ISDS system? Will abolishing treaty-based arbitration make contract-based arbitration the default mechanism? What would be the role of mediation and (possibly) facilitation mechanisms?
- The different frameworks and notions of ‘justice’ implicitly or explicitly articulated in the various reform proposals;
Justice has been articulated in a variety of forms. Yet, investor-state arbitration has been prominently considered a ‘private’ dispute resolution mechanism. What is the relationship between the dispute resolution function and ‘justice’? What other concepts of justice (e.g., distributive) do or should ISDS reform proposals normatively endorse, considering current global (e.g., climate) challenges? What type of reforms would be needed to entertain those concepts?
- ‘Justice’ for affected stakeholders other than investors or States (e.g., local community-based mechanisms, or ‘transitional’ justice for investment);
In whose interests and benefits will justice be delivered in the scenarios proposed thus far? What is the subjective dimension of justice present in the reforms and how is it addressed? What type of mechanisms can we imagine for ‘inclusive’ justice, within and beyond what has been suggested so far?
- ‘Justice’ in the substantive provisions of investment treaties and contracts underlying investment disputes;
Procedural mechanisms might well not be able to respond sufficiently to certain ‘justice’ needs and claims in the investment context; what type of substantive reforms are needed to generate a ‘just’ investment environment, both in the relevant treaties and further contractual arrangements (including insurance and financing agreements)?
- ‘Justice’ beyond dispute settlement. Alternatives to the current model of investment and (economic) development:
What paradigms of ‘development’ does the current set-up of investment law and arbitration respond to? What other alternatives to FDI can we imagine leading to a ‘just’ path for prosperity? What other (possibly bottom-up) models can be identified in pursuing justice in the context of ‘development’?
The conference aims at contributing to the current debate on the reform of investment arbitration, by shifting the focus from the proposals as such towards the forms and notions of justice at the core of these proposals. While a seemingly theoretical question, the issue of justice in investment arbitration has profound practical implications. International investment law traditionally offers foreign investors access to compensation through investor-State arbitration, based on a highly efficient enforcement mechanism. Yet, the right for recourse is exclusive and narrowly accessible only to foreign investors, at the costs of other affected stakeholders such as local communities.
The objective of the conference is to dissect the reform proposals and investigate whether these reforms are in fact just ’business as usual’ or whether they leave any space for a different paradigm that is not merely focused on financial remedies granted to investors, especially considering the consequences generated by the climate crisis. The conference will also explore what conceptual shifts are potentially necessary in the current architecture of the investment governance to address (re)distributive concerns.
The event brings together a varied group of experts. The intent is to ease the epistemic, conceptual, and practical divide between practitioners, civil society organizations and academics from different geographies and disciplines.
(download PDF version below)
Piotr Wilinski & Federica Violi
Ana Maria Daza Vargas
Panel 1 | Regional and National Reflections on the System and its Prospects
Asli Gurbuz Usluel
Evolving trends in investment arbitration - a comparative analysis with focus on CSR
Gabriel Resources v Romania: justice, domestic courts and foreign investment
Looking into crystal ball - current and future legal protection of renewable energy investments
Olaniyi Felix Olayinka
Towards a post investor state dispute settlement in Africa: The right to self-determination and environmental sustainability in Nigeria
Panel 2 | 2050: A Nature Odyssey – Alternatives for the Protection of the Environment
The New Norm(al): Exploring the Normative Potential to Reshape International Investment Law for the Green Transition
Jose Gustavo Prieto Munoz
Sustainability as a meta-principle in international investment law: a legal standard for 'multi-faceted' disputes
Addressing the asymmetries in evolving international investment law regime
Environmental counterclaims in ICSID arbitration: options in addition to the report of Working Group III
Leonie Reins and Endrius Cocciolo
The notion of 'justice' in the ECT - an analysis from the perspective of Earth System Law
Keynote speech | Keynote speech | Disputed Justice: the Settlement of International Investment Cases in Question(s)
Panel 3 | Justice Formula (and a theory behind it)
Thomas Schultz and Simon Bezat
Arbitration paradigms and concepts of justice
The clash of conflicting narratives: what lies beneath the ISDS legitimacy crisis
Justice in the epistemologies of the status quo: a critical realist examination of investment arbitration's reform
Reimagining international investment law - or how to reform indeterminacy and identity in ISDS
Gamze Erdem Türkelli
Panel 4 | Communities in Focus – justice beyond the “usual suspects”
Justice in ISDS and the search for community
Reforming the ISDS system. What about restorative justice?
Reimaging international investment law: inclusive justice for investment affected parties
Romit Sarkar and Karthik Subramanian
Room to manoeuvre? Exploring "cause lawyering" for justice in existing ISDS framework
Panel 5 | What if…? New Paradigms in a post-ISDS World
Revisiting the Impact of ISDS Dismantling: Cui Bono?
Are the protections offered by EU law a suitable alternative to those offered by international investment law?
John Saidi Nyanje
Time for a Pan-African investment court?
Investor accountability through yet another binding treaty? Analysis of the relationship between human rights and international investment in the negation of a binding treaty on business and human rights
Discussants + Keynote + Organisers