Advocating a Hybrid Framework for the Multilateral Investment Court: Operationalizing the Rule of Law

In recent history, investor-state dispute settlement (“ISDS”) has faced extensive criticism that largely stems from its alleged failure to promote key aspects of the rule of law. In response to the serious backlash against ISDS, various suggestions for reform have been put forward. One of the leading proposals tabled is the potential establishment of a Multilateral Investment Court (“MIC”). This article presents an in-depth examination of this proposition, focusing specifically on the potential nature and scope of any future MIC. Accordingly, this article recommends the adoption of a hybrid framework for the MIC. This suggestion is based on a mixed methodological analysis of prominent extant international dispute settlement mechanisms that seeks to measure their adherence to the rule of law (which the authors establish as encompassing three key pillars: legitimacy, transparency, and efficiency). Through the process of operationalization, the authors assign tangible numerical values to these abstract concepts; this ultimately serves to create a numerical index, which in turn will be used to propose an optimal hybrid model for the design and operation of the MIC, with a view to ensuring that it best promotes the rule of law.