CETA and the Debate on the Reform of the Investment Regime

Abstract

Much of the legal argument on the reform of investment law and dispute settlement has until now been marked with preference bias, with partial truths and, on the part of investment practitioners, with some elitism and arguments of authority. Data collection and quantitative research may assist in getting the debate back on track on verifiable grounds, but investment lawyers should also make use of their capacities as guardians of procedural fairness and as legal engineers to optimize their contribution to the debate. The main challenge however is to diversify participants in the debate, in particular beyond the legal scene, and to systematically and constructively confront their views. Overcoming these weaknesses will be a major challenge for the United Nations Commission on International Trade Law (UNCITRAL) in its forthcoming work on the possible reform of ISDS. UNCITRAL should take great care in defining the scope of its work so as to avoid any impression of bias. The success of its work will further depend on the largest possible consultation of all possible stakeholders, well beyond UNCITRAL’s technical and commercial profile. Negotiators must also improve the legibility of investment treaties. In particular, the actual treaty provisions should be complemented with official stated reasons setting out in plain language the ambit and the underpinnings of the various provisions of the treaty.

The author should disclose that he acted as counsel to the Walloon Region of Belgium in the period preceding the signature of the CETA. He is very much indebted to his associate at Liedekerke law firm in Brussels, Maria-Clara Van den Bossche, for her comments on earlier drafts of this article.