Against Imperial Arbitrators: The Brilliance of Canada's New Model Investment Treaty

Investment treaty arbitration has become politically “toxic” even in states that pioneered the development of investment treaties. There is consensus on need for reform. But there a dearth historical research what went wrong with treaties, when it happened, or how to find way forward light past. As result, reform efforts have stumbling quality. One can see this multilateral fora, such as United Nations Commission International Trade Law (UNCITRAL), where over four years study and negotiations produced little consensus. also practice individual states, Canada, which recently lurched across spectrum from permanent international court, abandonment investor-state dispute settlement (ISDS), back arbitration. This article fills gap understanding by explaining happened. It demonstrates customary law state responsibility injuries aliens evolved during 19th century protect foreign investors against exceptional failures nightwatchman rule-of-law states. regarding standards treatment unraveled 20th due spread communism, decolonization, economic nationalism, capital-exporting turned bilateral treaties (BITs) uphold traditional principles protection investment. Starting late 1990s, however, an unexpected surge claims brought under NAFTA’s chapter fortuitously opened door central problem modern practice: rise “imperial arbitrators” who do not merely police but choose second-guess normal operations regulatory without any meaningful checks balances. Although NAFTA Parties nipped bud, imperial arbitrators leapt broader universe arbitration, flourished until developed measures phaseout nuclear power crisis point. Seeking past, examines Canada’s recent experimentation reforms, including court relations EU, complete elimination ISDS States, return new model coupled substantive reforms virtually eliminate opportunities The describes last option most brilliant because only one substantively eliminates toeholds while preserving safeguard