This is the first study on the subject of Investors’ Perception and views of Proposed Reforms to the Investor-State Dispute Settlement (ISDS).
It is conducted and released by the School of International Arbitration, Centre for Commercial Law Studies, Queen Mary University of London. It has been prepared with the generous support of the Corporate Counsel International Arbitration Group (CCIAG).
The background of the survey is the relatively long-standing debate about an alleged legitimacy crisis of ISDS. In response to this debate, and in late 2017, UNCITRAL has embarked on an ambitious project exploring the potential for reform of ISDS, focusing primarily on procedural reforms. Other international organisations have also embarked on similar efforts. It has emerged, however, that the typical claimants in ISDS processes, namely the investors, whether small or big, do not have any concrete representation or input in the reform process and have never expressed their views through an unbiased and academically rigorous empirical survey. This is undisputedly a shortcoming.
In an effort to fill this gap and fulfil the critical need for this important stakeholder’s representation, CCIAG has funded this research to be conducted by Queen Mary given the School of International Arbitration’s experience with more than 11 empirical surveys since 2006.
Professor Loukas Mistelis, who led the project states “the current reform debate is and will continue to be informed by independent and impartial academic research and we are delighted to have worked with the CCIAG to canvas the views, experiences and perceptions of investors on ISDS. The report provides a unique perspective and merely reports the findings of respondents from small and medium size enterprises and also a good number of multinationals. We anticipate that it will generate debate and inform policy decisions”
Tom Sikora, Chair of CCIAG states “In the context of ISDS reform debates, both state actors and academics have purported to speak for the investor community while lacking a legitimate basis to do so. Because of the Queen Mary-CCIAG Survey, we can finally speak about investor preferences on an empirical basis. The fact is that investors are open to incremental ISDS reform that would improve the current system and improve consistency and efficiency. However, investors do not support dismantling the current system and replacing it with a state appointed investment court. Similarly, investors do not support saddling the system with an appellate body with a broad scope of review, which would just compound uncertainty and add to the cost and delay of ISDS proceedings.”
Andrew Clarke, founding member and former chair of CCIAG states "This survey is an important contribution to the current debate on investor state dispute settlement. The reaction of investors to any new proposals should be at the heart of the discussions, but they have few opportunities to express their views. The CCIAG was delighted to sponsor this survey in order to provide investors with such an opportunity and thank Queen Mary University for the excellent work in the preparation and administration of the survey as well as the analysis of the results."
Caroline Croft and Giammarco Rao who were the Lead Researchers state “It was an honour for us to work on such a relevant project, which allowed investors to express their views on the current debate on ISDS. We hope the results of this survey will shed light on the perspective of investors and inform reform efforts.”
Download the 2020 International Arbitration Survey: Investor-State Dispute Settlement (ISDS) [PDF 1,480KB].