What’s in a Meme? The Truth about Investor- State Arbitration: Why It Need Not, and Must Not, Be Repossessed by States

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The current discourse on international investment law and investor-State arbitration is replete with inaccuracies and hypothetical fears. Certain quarters are clamoring for sweeping changes that would undermine the effectiveness of foreign investment protection by politicizing the existing neutral, juridical system for resolving investor-State disputes. With the impending expiration of over 1,000 investment treaties and the negotiation of two trade and investment treaties that would cover 65% of the world economy, the system stands at a watershed moment, calling for a comprehensive rebuttal to critics. We argue that proposals to politicize dispute settlement—by giving states control over adjudicators, introducing self-judging defenses, permitting retroactive treaty amendment through state practice, or relaxing the rules of treaty interpretation—should be rejected. The evidence demonstrates that investment treaties and arbitration benefit poor states, are even-handed, enhance transparency, allow states ample regulatory leeway, and promote the rule of law.