Abstract

Much of the criticism of the ISDS system has a common substantive focus: creating better formal international investment law rules. No matter the perspective of the critique, it appears agreed upon that what we need is a different definition of the term "investment," a better substantive grasp of the jurisdictional reach of most-favored-nations clauses, or a rule-based approach to the incorporation of investors in a foreign jurisdiction solely for the purpose of obtaining treaty protection. The perspective of most critiques merely proposes different formal rules rather than questioning ...