In a paper posted on SSRN, law prof Gus Van Harten proposes some investor-state reforms:
In border and trade talks with the US and the European Union, Canada should seek to improve the institutional framework of investor-state arbitration. As it happens, one of the best models appears to be a Canadian one: the Agreement on Internal Trade. Based on this model and its underlying principles, Canada should target these improvements in investor-state arbitration:
• a pre-set roster from which all arbitrators would be appointed;
• an objective method to select tribunal chairs where the parties do not agree;
• rigorous checks on outside remunerative activities by arbitrators;
• a binding code of conduct for arbitrators;
• a duty to resort to reasonably-available local remedies, especially in the case of states with mature domestic court systems; and
• an independent screening process to weed out claims that are frivolous, harassing, or unlikely to succeed.
For those who support investor-state, do these proposals go too far? For those who oppose it, do they go far enough? Is there a middle ground to be found here?
