José E. Alvarez
Like Hamlet, states today face a choice about whether it is nobler to continue to suffer the slings and arrows of investor-state arbitration (ISDS) or to finally take arms against its sea of troubles and end them by establishing, as the EU proposes, an international investment court. For governments faced with an onslaught of complaints against ISDS, it is tempting to put its arbitrators finally to bed—and say “no more” to the heartache and the thousand natural shocks of that regime. But, as with Hamlet, the question is whether the dream investment court would really be better than the very mortal ISDS before us. Should states, like Hamlet, worry about shuffling off the mortal coil of ISDS and risk an investment court that may turn into a nightmare? Should they, frightened of what dreams may come, stretch out the long calamitous life of ISDS?
Cite: José E. Alvarez, To Court or Not to Court?, MegaReg Forum Paper 2016/2.