Published 28 June 2019
The delegation by states through international investment agreements (IIA) of adjudicatory competences to arbitral tribunals without clear substantive or to some extent, procedural rules as well as lack of appeal mechanism raised significant controversies when those mechanisms began to be used by foreign investors in the late 90s of the 20th century. This article presents investment arbitration provisions of United States-Mexico-Canada Agreement (USMCA) in the broader context of the ongoing process of transformation in international investment law. Two main elements are highlighted. The first one is limitation on access of individuals to investor-state dispute settlement (ISDS) by favoring domestic courts. As a result, USMCA investment arbitration resembles the practice of not only EU-Member States in their inter se relations (after the Achmea decision) but also models applied by Brazil, Ecuador, India and South Africa. The second element is the emergence of enhanced flexibility of states to apply simultaneously different methods and procedures among diverse instruments for settling foreign investments disputes. States seem to be ready to apply a variety of ISDS schemes not only in specific bilateral investment treaties, but also in multilateral agreements. Thus, it is not substantive investment law, but the method of the settlement of disputes, that will attract the most attention in negotiations of new IIAs in the era where no single universal model exists.
This paper will be part of the TDM Special Issue on "The United States-Mexico-Canada Agreement (USMCA)". More information here https://www.transnational-dispute-management.com/news.asp?key=1733