On 14 January 2016, Allen & Overy hosted a public international law debate, which posed the following question: Has the time come for the establishment of a permanent investment court?
This hard fought debate pitted Professor Philippe Sands QC and Sophie Lamb (for the affirmative) against Ali Malek QC and Stephen Fietta (for the negative), and considered the pros and cons of the existing Investor-State dispute settlement (‘ISDS’) regime and whether a permanent court could address its shortcomings. The affirmative team called the current system a “lottery” dependent on arbitrator selection; emphasised the ever-increasing caseload of ICSID; the lack of accountability of arbitrators and the potential for conflicts given their dual role as counsel in other arbitrations; political illegitimacy of the system; and the current cost of the process. The negative team acknowledged the problems with the current system but advocated spending time and energy addressing those issues rather than creating a new court which, in their view, would be expensive, impractical, and suffer from the same problems.
With an overwhelming majority of attendees initially indicating a firm lack of support for the establishment of a permanent investment court, the unfolding debate swayed its eager listeners with the final result that a permanent court for ISDS was seen by many in the room as preferable to maintaining the status quo.
It was a fascinating, topical debate, broaching an issue that will no doubt remain firmly on the agenda as multilateral trade agreements such as the Trans-Pacific Partnership (‘TPP’) and the Transatlantic Trade and Investment Partnership (‘TTIP’) continue to receive intense political and media scrutiny.
See more detail here.