June 17, 2015

Mattias Kumm on ISDS as "the Institutionalization of Unjustified Privilege"

Network member Mattias Kumm (NYU/Humboldt) has alerted us to a new piece he has posted on the website of the European Society of International Law.  Entitled "An Empire of Capital? Transatlantic Investment Protection as the Institutionalization of Unjustified Privilege", an excerpt can be found below and the full article can be found here.

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In the following I will seek to briefly sketch a broader historical context for the debate on investor-state arbitration provisions in TTIP and CETA.  Within such a broader context the wholesale rejection of ISDS provisions in these treaties will, I think, appear in a different light. The field of investor state arbitration is historically connected to purposes and contexts, which are strikingly different from the contemporary world of trade and investment relations between liberal constitutional democracies. What might conceivably have been a mutually useful policy instrument in the relationship between developing and developed countries – and there is much that can be contested even in that context - has no plausible role to play in the relationship between developed liberal constitutional democracies.  The idea of investment arbitration as a field with its own separate dispute resolution infrastructure should be seen as an inherently dubious transitional phenomenon – perhaps comparable to the League of Nations Mandate System or the UN Trusteeship System - that deserves to wither away over time, rather than being reformed. [Read the full article here]

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