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Advocates Say Isds Is Necessary Because Domestic Courts Are ‘Inadequate,’ But Claims And Decisions Don’T Reveal Systemic Failings, Maria Rocha, Martin Dietrich Brauch, Tehtena Mebratu-Tsegaye

Columbia Center on Sustainable Investment Staff Publications

Proponents of including investor-state dispute settlement (ISDS) provisions in treaties, contracts, and even national laws argue that ISDS is necessary because domestic courts are “inadequate.” Without this mechanism, foreign investors would be dependent on domestic courts and administrative mechanisms, which, proponents claim, are often inefficient, slow, biased, corrupt, and lacking in international law expertise, especially in developing countries. As one insight to analyze the “inadequate courts” argument, CCSI has examined treaty-based ISDS cases in which investors complained of domestic court proceedings or decisions, including the specific complaints and the tribunals’ analysis of those claims.