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than domestic investors; that it can create the risk of a
‘regulatory chill’ on legitimate government policymaking;

that it results in inconsistent arbitral awards; and that it

is insufficient in terms of ensuring transparency, selecting
independent arbitrators, and guaranteeing due process.” 6

Widespread dissatisfaction with the current system of ISDS have led
to a common understanding by certain stakeholders that there is an urgent
need for reform. Some States have even abandoned the possibility of granting

investors access to ISDS through their investment treaties. This was reflected

in the most prominent example of the Australian Gillard Government’s 2011
declaration not to pursue the inclusion of ISDS in future treaties. Certain
7
States have decided to denounce the 1965 Convention on the Settlement of

Investment Disputes between States and Nationals of Other States (the “ICSID

8
Convention”, also referred to as the “Washington Convention”) while others
9
have opted to terminate or renegotiate their BITs.

In light of the criticisms of traditional ISDS, some view that reforming
the system is preferable rather than rejecting it as a whole. After all, ISDS is a
method of ensuring compliance with host States’ treaty obligations and

provide recourse to investors for breaches of those obligations. Without

6. UNCTAD, World Investment Report 2015 : Reforming International Investment Governance,
2015, p. 128. Retrieved from http://unctad.org/en/pages/PublicationWebflyer.aspx?
publicationid=1245.
7. Australian Government, Department of Foreign Affairs & Trade, Gillard Government Policy
Statement, 12 April 2011, p. 14, (where the Australian Government announced that it
would discontinue the practice of seeking inclusion of investor state dispute settlement
provisions in trade agreements with developing countries which became known as the
“Gillard Government Trade Policy Statement”). Retrieved from http://trademinister.gov.au/
releases/2011/ce_mr_110412.html.
8. Bolivia, Ecuador and Venezuela.
9. See for example, South Africa, Indonesia, Bolivia, Venezuela, and Ecuador.

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