Paradigms of justice and the limits of ISDS reform

More than seven years into the investor-state dispute settlement (ISDS) reform process at the United Nations Commission on International Trade Law (UNCITRAL) Working Group III, several reforms have been proposed to address concerns with the current functioning of the system. This article asks whether the eventual outcome of the reform effort is likely to result in a new paradigm of ISDS justice. Focusing my remarks on the two opposing views on ISDS reform (ie non-structural/incremental versus the structural multilateral investment court proposal), I argue that there is cause for scepticism. Scepticism is warranted because there is little in UNCITRAL's reform agenda and in the treaty negotiating practice of states for a different paradigm to take hold as to what the 'constituency' of ISDS is-that is, as to the full range of legal rights and interests that decision-makers in ISDS should take into account.