The Multilateral Investment Court System as a Credible Alternative to Investor-State Dispute Settlement

Abstract

International investment arbitration (also known as investor-state dispute settlement or ISDS) is the primary means of resolving investment disputes. ISDS was initially hailed as a success. However, it is currently experiencing a significant backlash. In recent years, the effectiveness of ISDS has increasingly been questioned. In light of this, many scholars have suggested that reform is necessary. Various proposals have been put forward, however, no consensus about the exact nature of reform has emerged. The thesis will analyse the defects of ISDS in order to examine whether its retention is desirable, or whether complete replacement is necessary. The author will suggest that the time for making minor changes to ISDS has passed, therefore, alternative mechanisms should be considered. This thesis focuses on analysing the EU proposal to establish a Multilateral Investment Court (MIC), assessing whether it can address the fundamental deficiencies of ISDS. It will strive to determine whether the MIC is the most appropriate mechanism for resolving foreign investment disputes. Ultimately, the work will demonstrate that the conclusion of a multilateral investment agreement (MIA) is the bedrock for establishing a MIC. Short of reforming the substantive foreign investment rules, any iteration of the MIC would fail to enhance legitimacy, efficiency, and transparency in investment dispute resolution. That said, the thesis acknowledges that the conclusion of a MIA (and the establishment of a MIC based on the MIA) may not be politically feasible at present. Further, given the decentralised framework of international investment law, it is not reasonable to introduce a single mechanism for the resolution of all foreign investment disputes. It is within the context that this thesis contends that the establishment of a foreign investment multi-track dispute settlement system, under which the disputing parties can freely select their most preferred means among all the available mechanisms is desirable (at least in the short term).

Date of Award	31 Dec 2023
Original language	English
Awarding Institution	The University of Manchester
Supervisor	Jasem Tarawneh (Supervisor) & Nicolette Butler (Supervisor)