Globalization has increased international investment activity, but no unified legal framework governs international investments. After several attempts to establish a multilateral investment framework, prospective parties remain unable to reach a consensus on a viable system to address investor and state rights. Developed, capital-exporting states wish to protect their citizens' investments, whereas developing states simultaneously seek to attract investments and maintain regulatory autonomy. In the absence of a comprehensive agreement, bilateral investment treaties serve as the primary legal instruments setting forth the terms of cross-border investments. These treaties often grant private investors the right to file claims before the International Centre for the Settlement of Investment Disputes (ICSID). ICSID cases sometimes raise questions that mirror the competing interests of developed and developing states that surface during multilateral investment treaty negotiations. Amending the ICSID Convention to include a provision allowing tribunals to consider environmental, public health, and labor concerns would serve as a positive step toward establishing an investment regime that maximizes the interests of investors and host states alike. This scheme would better address state interests, enhance ICSID's legitimacy, and increase the likelihood of future, successful negotiations to establish a workable and comprehensive multilateral investment framework.
Kate M. Supnik,
Making Amends: Amending the ICSID Convention to Reconcile Competing Interests in International Investment Law,
59 Duke Law Journal
Available at: http://scholarship.law.duke.edu/dlj/vol59/iss2/4