It is challenging to reach an agreement on a global level on key issues, as shown in the global efforts to regulate greenhouse gas emissions. The investment law regime has long had the same problem. Many attempts to agree on a global standard for the protection of foreign investments have failed because of the countries’ different ideas about which rights to be provided for foreign investors.
It was this failure that motivated the World Bank to establish ICSID (International Centre for Settlement of Investment Disputes). Instead of regulating the level of protection that foreign investors can rely on – and therefore had proved to be very difficult – the solution was to establish a purely procedural framework for settling disputes by way of the ICSID Convention, which was signed in 1965. The Convention does not provide substantive investment protection. This matter has instead been left to countries to agree among themselves, often at a bilateral level.
By focusing on the procedural aspects rather than on substantial, ICSID has gained great support from countries. In addition, a big problem in the mid-twentieth century could be fixed: State’s intervention in economic matters. Previously, disputes between governments and foreign investors could only be solved by government intervention. In a world where major former colonial powers often faced the newly independent countries, the country with the power often won. In addition, some part of world trade took place with countries with a negative view on market economy, such as those who belonged to Soviet’s sphere of interest. By the establishment of ICSID, the playing field could be evened out and independent dispute resolution was first introduced in world trade. Instead of political power, rule of law would decide the disputes.
In hindsight, this has proven to be a recipe for success for ICSID. The Convention has now been signed by 159 countries and the centre in Washington has administered hundreds of disputes. Furthermore, while global attempts to regulate investment protection have failed, ICSID remains strong. The reason was largely because the majority of the thousands of bilateral investment treaties (BITs) refers to the center to solve disputes. Even in modern times new investment agreement continuously refer to ICSID for the settlement of investment disputes.
Today, there have been ideas to create a global system for settling investment disputes. It may be worthwhile to remember that there is already such a system, which for decades has been accepted by the overwhelming majority of the countries, and that this system was established with the aim of creating a neutral playing field for dispute resolution that otherwise tend to be politicized.