By: N. Jansen Calamita & Charalampos Giannakopoulos
In this Article, we use the Association of Southeast Asian Nations (ASEAN) as a case study to question whether the proposed establishment of multilateral institutions (namely, a Multilateral
Investment Court or a standing appellate mechanism), as part of investor-State dispute settlement (ISDS) reform efforts, will adequately address the concerns and priorities of individual States. The varied content and overlapping nature of the investment treaty portfolios of ASEAN Member States, as well as their varied experiences with ISDS to date, mean that key concerns and priorities that ASEAN Member States have expressed about the current regime of ISDS (consistency and coherence, representation, and cost-efficiency) may not be adequately addressed unless the proposed multilateral institutions are flexibly structured to allow for regional adaptation. Given this assessment, we suggest two ways for such regional concerns to be reflected in the United Nations Commission on International Trade Law’s (UNCITRAL) multilateral reform proposals, namely: (i) for UNCITRAL to establish a mechanism to allow for treaty-specific chambers within a Multilateral Investment Court or a standing appellate mechanism; and (ii) for ASEAN Member States and their Free Trade Agreement (FTA) partners to capitalise on the opportunity afforded by the Regional Comprehensive Economic Partnership (RCEP) to move towards a consolidation of investment treaty rules and dispute settlement among ASEAN Member States, as well as between ASEAN Member States and the ASEAN FTA partners.