Really enjoyed this post from @AntheaERoberts @taylor__stjohn. There are many good pieces about the proposals for ISDS reforms & tradeoffs. What is unique about this piece is its emphasis on a political, deliberative forum as the emerging system's "center." Initial reactions 1/n.
I agree that it's important to think about the diplomatic and political fora that will compliment/steer whatever court or appellate process is eventually set up. I've learned a lot from @loyaladvisor about this dimension of the trading system. papers.ssrn.com/sol3/papers.cf… 2/n
There's lots of helpful literature on the role of political fora, both vis-a-vis courts and as governance mechanisms in their own right. The post's reference to the UNFCCC (likely deliberately) calls to mind Churchill & Ulfstein's foundational work: cambridge.org/core/journals/… 3/n
And there's helpful literature in trade law.
See, for example, Lang & @JoannescottstM on WTO Committees, and the response by Richard Steinberg. academic.oup.com/ejil/article/2….
Also Horn, Mavroidis and Wijkstrom on committees as dispute settlement. papers.ssrn.com/sol3/papers.cf… 4/n
See, for example, Lang & @JoannescottstM on WTO Committees, and the response by Richard Steinberg. academic.oup.com/ejil/article/2….
Also Horn, Mavroidis and Wijkstrom on committees as dispute settlement. papers.ssrn.com/sol3/papers.cf… 4/n
And it's not like this doesn't happen in investment law either. As @geoffreygertz points out, the US has a practice of Trade and Investment Framework agreements, which establish bilateral fora for high-level coordination on policy. 5/n
Some BITs establish similar committees and give them a "dispute prevention" role vis-a-vis ISDS. This is controversial, ejiltalk.org/nigeria-and-mo…, but I think it's a promising way forward. 6/n
Roberts & St. John conclude with the benefits of centralization vs. decentralization. Centralizing investment law fosters consistency but may "stifle innovation," while decentralization offers dynamism and inconsistency. I wonder if this is too restrictive or path-dependent. 7/n
A judicial body can facilitate dynamism & innovation by applying justiciability doctrines, institutional balance, etc. In a recent paper, I suggest that, surprisingly, a centralized judiciary might be well-positioned to perform this function. papers.ssrn.com/sol3/papers.cf… 8/n
I'm still skeptical of the need for a multilateral investment court, for many of the same reasons outlined by Sornarajah here: ccsi.columbia.edu/files/2013/10/…. 9/n
Nevertheless, I was surprised by my own conclusion that greater centralization can, under certain circumstances, foster the kind of innovation, dynamism, and political responsiveness that states appear to be seeking. 10/END.
