This is from Freya Baetans, writing in response to Poulsen, Bonnitcha, and Yackee:
one type of risk that is certainly present in several EU member states relates to the possibility of not being granted a fair trial before a domestic court. According to a recent country ranking of ‘judicial independence’ performed by the World Economic Forum, some EU countries are among the best in the world (Finland and Denmark are in the top five), but others perform rather poorly (Slovakia ranks at 130 out of 140, Bulgaria at 126) – at place 30, the US is still below countries with which ISDS is planned to be concluded, such as Canada (place 9) or Singapore (at 20), or with which it can be expected to be concluded, such as Uruguay (at 21) or Saudi Arabia (at 26).
The rankings are here. If you select "judicial independence" as a category (1.06), you may be surprised by some of the rankings, so I'm not sure how much stock should be placed in them.
But putting that aside, I wonder whether ISDS is the answer to concerns of this sort about domestic courts. If there are general problems with the independence of a country's judiciary, aren't that countries' citizens and corporations affected most? No doubt foreign investors will also be affected, but to a much lesser degree. So, to the extent this is a problem, isn't the solution to improve the domestic courts generally, for the benefit of all? ISDS just leaves the domestic system in place for most people, while giving foreign investors a special international judicial remedy (and note that there are criticisms of ISDS tribunals as not offering fairness themselves).
