Diversity, Inequality, and ISDS

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By Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law

Much ado has arisen in recent months about the investor-state dispute settlement provisions in the Trans-Pacific Partnership and the Transatlantic Trade and Investment Partnership international trade agreements being negotiated.

Sources one might look to are http://isdsblog.com/, Senator Elizabeth Warren in the Washington Post (http://www.washingtonpost.com/opinions/kill-the-dispute-settlement-language-in-the-trans-pacific-partnership/2015/02/25/ec7705a2-bd1e-11e4-b274-e5209a3bc9a9_story.html), an extended segment on John Oliver’s program Last Week Tonight (https://www.youtube.com/watch?v=6UsHHOCH4q8), and an Alliance for Justice brief description of the issue and the letter at http://org2.salsalabs.com/o/6539/p/dia/action3/common/public/?action_KEY=19342.

Said multilateral trade agreements are inserted into a rich tapestry of bilateral investment treaties, regional one’s (NAFTA as an example), and the overarching world trade system under the auspices of the World Trade Organization.  A common feature of all these types of agreements is to have a dispute settlement mechanism between the state and the investor (for the bilateral and regional) and between states at the World Trade Organization level. These dispute settlement mechanisms are only part of the broader realm of international dispute resolution that includes well-known international commercial arbitration in which contracting parties have agreed to arbitration as a means of settlement of the disputes that may arise under a given contract.  State and state-owned enterprises have a long history of being parties to such international commercial arbitration.  And these dispute settlement mechanisms have an even broader history in domestic settings, particularly in countries like the United States in which subject matter inarbitrability is extremely narrow.

The common dimension of all of these mechanisms is that there is a panel – appointed by the parties to the dispute or a third party – that hears the case and renders its award, report, or whatever is the relevant final product under the dispute settlement mechanism that has been chosen.

Who are the people in these panels?  How do they get on the lists or other mechanisms that permit them to be on these panels?  Who are the people who represent these parties in these cases?  As all of these processes are by their conception confidential processes, knowing who are these persons – as contrasted with identifying the judges in any given country – is very difficult to know.  This anonymity nags at me in this whole super-structure.