Addressing (In)equality in Redress: Human Rights-Led Reform of the Investor-State Dispute Settlement Mechanism

In the context of ongoing scholarly debates, civil society criticisms and efforts to reform the investor-state dispute settlement (ISDS) mechanism, this article critiques the widely-accepted approach that seeks to fit international human rights law (IHRL) into the existing structure of ISDS and argues that IHRL should at least be treated as ‘primus inter pares’ vis-à-vis international investment law. Testing ISDS on the touchstone of the human rights to equality, non-discrimination, and an effective remedy, the authors demonstrate that ISDS is incompatible with IHRL. Considering various structural and systemic problems of ISDS, abolishing this mechanism is perhaps the only normatively sound solution to address this incompatibility with IHRL. However, as achieving abolition may not be politically feasible in the near future, this article articulates eight principles for a human-rights compatible international dispute settlement mechanism. It is argued that these principles should inform the current efforts to reform the ISDS mechanism to avoid the risk of making only cosmetic or peripheral changes.