TPP and Investor-State Dispute Settlement: An Intertwined Spectrum of Options for Investors?

Abstract

Once ratified, Chapter 9 of the TPP (the Investment Chapter) will provide important protections to investors through the Investor-State Dispute Settlement (ISDS) system. While the Investment Chapter has triggered certain criticism, TPP members have relied for years on the ISDS system as an effective mechanism to solve disputes under pre-existing international investment agreements (IIAs). The new ISDS provisions are not revolutionary but reflect an effort by TPP members to regulate and include public concerns in the Investment Chapter. There is, however, a remarkable absence in the TPP: there is no provision addressing the “coexistence” between TPP and preexisting IIAs. This absence—which very likely will result in investor-State treaty shopping— will offer alternatives to investors to bring arbitration claims under preexisting investment treaties.