This essay proposes a matrix for understanding the dynamics of investment treaty reform. It tracks incremental, systemic, and paradigmatic reform options as applied across procedure, substance, and form. Although stylized and thus unable to capture all the nuances of individual positions, the reform matrix creates a framework for understanding some of the main debates about investment treaty reforms and offers a template for locating and comparing the approaches of key international actors, including the United States, the European Union, and Japan, together with Brazil, Russia, India, China, and South Africa (the BRICS). The bilateral investment treaties (BITs) of major Western states can be roughly divided into two generations. First-generation treaties from the 1990s and earlier (BITs 1.0) typically included strong investor protections and binding investor-state arbitration. A series of cases against the states that entered these treaties forced them to recalibrate, leading to a second generation of treaties from the mid-2000s onward (BITs 2.0) that aim at striking a better balance between investor protection and state sovereignty, while retaining investor-state arbitration. However, the Western powers that have adopted these treaties are now split on various issues, most notably the merits of establishing a multilateral investment court. In light of these divisions and the growing economic importance of the BRICS, it is worth asking where the BRICS fit in this story and which investment practices and reform proposals they support or are likely to support. As this symposium demonstrates, as regards their treaty practice trajectories and reform positions, the BRICS often differ significantly not only from major Western powers, but also from each other. Given the disaggregation of international power and the varying preferences of key actors both within and outside the West, the most likely outcome is a pluralist one encompassing the coexistence of multiple approaches to procedure, substance, and form.

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Roberts, Anthea. AJIL Unbound; Washington Vol. 112, (2018): 191-196. DOI:10.1017/aju.2018.61