Designing a Multilateral Investment Court: Issues and Options

Abstract

Led by the European Union and Canada. a coalition of states is contemplating negotiations that would lead to the establishment of a multilateral investment court as an alternative to investor–state arbitration for the settlement of investment disputes. Discussions of the design of such an institution are at an early stage, and this essay is intended to aid the discussions by outlining many of the issues that would need to be covered in the drafting of a treaty instrument to establish such a court, and suggesting possible solutions.1 The value of the proposed solutions is not that they are fully argued as the best way to design the court, but that they might trigger concrete thinking about the options available to the drafters. Also, I have emphasized issues that relate closely to the overall legitimacy of the court and its potential to transform investment dispute settlement: some design issues of considerable importance are not addressed, such as, for example, rules on document discovery, the role of expert witnesses, the structure of oral hearings and the sequencing of written pleadings, and so on. Some of these matters might be dealt with best in the treaty instrument and others through detailed rules of court or a code of procedure. I have tried to preserve the character of this essay as a broad-ranging ‘think piece’ rather than a blueprint for the court that purports to be exhaustive, or reads like a laundry-list.