Against the background of the on-going negotiations between the EU and the US on the Transatlantic Trade and Investment Partnership (TTIP), which include proposals for an “investment court”, the investor-state dispute settlement (ISDS) mechanism offered by investment treaty arbitration has, once again, been pushed into the spotlight. The critics target what are seen as fundamental flaws in the current system: inconsistent and unpredictable decisions, pro-investor bias to the detriment of (often developing) states, and unwarranted domination by lawyers. The proponents argue that the system is still in its infancy but has been effective and is responding to criticism, and should be given more time to come into its own. It was within this context that Allen & Overy hosted a debate on the question, “Has the time come for the establishment of a permanent investment court?” on 14 January 2016. Jeffrey Sullivan, a partner in Allen & Overy’s International Arbitration group, moderated the debate, with the ‘ayes’ represented by Philippe Sands QC (Matrix Chambers) and Sophie Lamb (Debevoise & Plimpton). Ali Malek QC (3 Verulam Buildings) and Stephen Fietta (Fietta) spoke on behalf of the ‘nays’. It should be noted that speakers were assigned their roles and, as such, the positions adopted do not necessarily represent their personal views. Continue reading
