ISDS and Nazis or History Without Context: A Reply to Gary Born

Abstract

Gary Born’s article ‘The 1933 Directives on Arbitration of the German Reich: Echoes of the Past?’ fascinates for good and not so good reasons in almost equal measure. The author skillfully illuminated a rarely-discussed episode of arbitral legal history and aimed to apply its lessons to current debates surrounding investor-state dispute settlement (ISDS) reform. The overarching argument is that criticism and/or reform of investor-state arbitration is reckless and reminiscent of National Socialist efforts to curb private-public arbitration – risking undermining the rule of law and even allowing ‘history to repeat itself’. As much as the legal history part is a worthy contribution, this later part is laden with problematic claims and unfortunate parallels. The criticisms and potential (fairly limited) reforms of ISDS are portrayed as missteps towards a totalitarian abyss. Yet as much as investor-state arbitration can sometimes help promote the rule of law, it is not an indispensable ‘bulwark’ against state oppression. ISDS is a historically recent invention, with an even more recent case law. It deals with wide-reaching and objectively often controversial substantive rules, making reform proposals unsurprising. Crucially, even if investorstate arbitration disappeared completely, the history of Nazi horrors would not repeat itself. commercial arbitration, investor-state arbitration, history of arbitration, ISDS reform, Nazism