Towards Greater Investor Accountability: Indirect Actions, Direct Actions by States and Direct Actions by Individuals

Martin Jarrett, Max Planck Institute for Comparative Public Law and International Law
Sergio Puig, University of Arizona James E. Rogers College of Law
Steven R. Ratner, University of Michigan Law School

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Investor accountability in international investment law (IIL) has been gaining increasing traction in recent years. Most visibly, some states have included investor obligations in their investment treaties, while others have made them part of their model treaties. While highly significant for the substance of IIL, these duties need adequate procedural tools to enforce them. Otherwise, investor obligations will be only decorative features of investment treaties without any legal meaning. The oft-discussed option of counterclaims is limited insofar as it may only be launched after an investor has made a claim against a state. As a result, it is important to identify other potential pieces of the procedural infrastructure for investor accountability. This article analyses three such methods: indirect actions that link an investor's access to arbitration to its compliance with legal rules and standards, whether in domestic or international law; direct actions by states against investors; and direct actions by individuals against investors. In each case, we assess the existing legal landscape of arbitral and treaty practice, the most promising legal avenues for advancing that method of accountability, and potential challenges to these avenues. Given the procedural focus of the negotiations for ISDS reform taking place at UNCITRAL Working Group 3, it is a particularly opportune time for this exploration of these options.