La crisi del sistema ISDS e il progetto, non convincente, di una nuova corte arbitrale permanente

The paper analyzes the proposal contained in a number of recent EU international instruments and agreements (among which the draft text of the Transatlantic Trade and Investment Partnership – “TTIP”) of a new permanent international court for settling investment disputes in lieu of the traditional Investor-to-State Dispute Settlement system mostly based on (ad hoc or administered) arbitration. The author critically addresses the most relevant criticisms raised by several stakeholders against the traditional ISDS system (among which the threat to democracy, the conflict of interests of arbitrators, the lack of transparency, the excessive costs of the procedures) and highlights the practical drawbacks of the new proposed adjudicatory body, in so far as, on one side, it prevents investors to appoint their own arbitrators and experienced professionals to be appointed as arbitrators; on the other side, it allows only parties (academics and judges) who are on the payroll of States to be appointed as arbitrators in disputes involving the latter, thus blurring the requirement of impartiality; lastly, by introducing an appeal against the award, it upsets the traditional feature of arbitration, finality. Other innovations critically analyzed by the author concern the applicable law and the solution aimed at preventing parallel proceedings.