Even as international commercial arbitration has achieved broad acceptance, investor-state dispute settlement—ISDS—remains the subject of considerable controversy. ISDS was at the forefront of the recent negotiations concerning the Transatlantic Trade and Investment Partnership and Trans-Pacific Partnership Agreement, now called the Comprehensive and Progressive Agreement for Trans-Pacific Partnership. It has re-emerged as one of the principal proposed changes in the recently unveiled U.S.-Mexico-Canada Agreement (USMCA).

The Debate and Its Historical Context

The present debate and USMCA’s role in it must be placed in historical context. While international commercial arbitration has become increasingly prevalent over the last century, ISDS is a relative newcomer. Though bilateral investment treaties began incorporating ISDS provisions and ICSID was founded half a century ago, actual investor-state cases did not emerge for decades. Even then, it was not until the early-2000s that ISDS rose to prominence. It follows that the large part of ISDS experience and cases dates from the last two decades.

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