Dizzy Yet? The Spin on Investor State Dispute Settlement Just Doesn’t Stop

Introduction: Recently the United States Trade Representative (USTR) released a memo to reporters with Q&A’s on Investor-to-State Dispute Settlement (ISDS). ISDS is a mechanism by which foreign investors can challenge national governments, alleging that the government violated their investor rights. These rights include the right to be fairly compensated for expropriated property and to non-discriminatory treatment, but also the right to a “minimum standard of treatment,” which includes “fair and equitable treatment” and “full protection and security” and the right to be free from “performance requirements.” While these may sound reasonable, in fact these are extremely broad legal rights, many of which are not clearly defined in domestic law. The challenges take place not in domestic courts, but in international arbitration panels that do not apply domestic law. There are numerous “investment treaties” in existence, but their proliferation does not make them harmless. There are lots of rats and mosquitos in Washington, D.C., yet you find few defending them based on their capacity to reproduce successfully. You can read the U.S. Model Bilateral Investment Treaty, which embodies the Administration’s position on ISDS and other protections for investors, here. ISDS Tilts the Playing Field in Favor of Investors by Providing a Separate Justice System The memo claims that ISDS does not tilt the playing field in the United States further in favor of big multinational corporations. But it fails to...

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