This is from Chief Justice French of the Australian high court:
So far as I am aware the judiciary, as the third branch of government in Australia, has not had any significant collective input into the formulation of ISDS clauses in relation to their possible effects upon the authority and finality of decisions of Australian domestic courts. This is an issue which presently is of small compass. It has the potential to become larger and it is desirable that it be addressed earlier rather than later. One approach would be to examine the possibility of including requirements in ISDS provisions in appropriate cases for:
• prior exhaustion of remedies in domestic courts of the Contracting State;
• preclusion of any challenge to the decision of a domestic court as constituting a breach of the relevant BIT or FTA provisions; and
• preclusion of any arbitral decision based upon a rejection of a decision on a question of law of a domestic appellate court binding on lower courts.Those suggestions are offered merely to stimulate thought on the topic. It may be
useful for the general question to be given consideration by all of us and perhaps specifically
by the Council of Chief Justices. We are, I suspect, a little behind the wave-front of these
developments. It is time to start catching up.
What do judges in other national courts think of ISDS, specifically in relation to the possibility of their decisions being challenged? Given the Eli Lilly case, you would think Canadian judges have given some thought to this. But judges from the ECJ and U.S. Supreme Court, among others, might want to weigh in as well.
Thanks to Luke Peterson for the pointer.
