Conceptual and institutional improvements to investor-state dispute settlement

Abstract

Commissioned for a research handbook on intellectual property and investment law, this chapter focuses on ways to improve investor-state dispute settlement (ISDS) to address some of the concerns that have been identified when the ISDS mechanism is used in the intellectual property arena. The first half of this chapter identifies three sets of conceptual improvements – namely, those relating to the question about what constitutes investment, the role of intellectual property protection in an investment environment and the interrelationship between an international agreement containing ISDS and the host state’s obligations under other multilateral agreements. The second half of this chapter turns its attention to three institutional improvements – namely, the creation of an Advisory Centre on Investor-State Disputes, the development of a small claims procedure within the ISDS mechanism and the establishment of an appellate process to address investor-state disputes. Although the focus of these institutional improvements will be devoted to investor-state disputes in the intellectual property field, some of these requirements will be equally applicable to other forms of investments. Taken together, all the conceptual and institutional improvements advanced in this chapter will help provide the much-needed reform to the ISDS mechanism in international trade and investment agreements.