Investor-State Dispute Settlement Reform: Bilateral Investment Court

Abstract

In the ongoing trade and investment agreements negotiation between Thailand and the European Union (EU), the EU will likely request that Thailand agree to the use of international investment court (i.e., bilateral investment court) as the investor-state dispute settlement (ISDS) mechanism, which shall replace arbitration traditionally adopted in most investment treaties. This development conforms with the EU’s position found in its recently negotiated or concluded international agreements, which are Transatlantic Trade and Investment Partnership (TTIP), Comprehensive Economic and Trade Agreement (CETA), EU-Singapore Investment Protection Agreement (EU-Singapore IPA), and EU-Vietnam Investment Protection Agreement (EU-Vietnam IPA). This article aims to study the origin, characteristics, advantages, and drawbacks of such a new form of ISDS to identify observations and concerns that Thailand should consider in formulating its negotiation position and possibly prepare itself to be part of the system. According to the study, whereas the adoption of bilateral investment court may generate certain benefits, such as eliminating public suspicion about the decision-maker’s impartiality, it may not solve most of the ISDS problems at the center of Thailand’s concerns. In particular, the country shall be responsible for additional regular expenses, apart from other case-related expenses, either as a treaty party or a disputing party. In addition, it is doubtful whether the court would alleviate the problem of adjudicatory inconsistency as currently encountered in arbitration.