Metanarratives as a Trap: Critique of investor-state arbitration reform

Abstract

The ongoing reform of investment arbitration at the United Nations Commission on International Trade Law can have a lasting impact on international investment protection for the decades ahead. This paper examines the current discussions at the United Nations Commission on International Trade Law to explain why the current focus on reforming the procedural aspects of the system is too narrow. As a result of such a narrow approach, the reform risks to miss an opportunity to address the global challenges, e.g. climate change. In advancing its critique of the ongoing reform, the paper adopts the lens of metanarrative by Jean-François Lyotard. By relying on Lyotard, this paper cautions that such values as feasibility and efficiency in conducting the reform should not obscure the need for a critical conversation on the purpose of the reform, which is to ensure the legitimacy of investment arbitration in the future. As this paper argues, a current procedural approach to the reform cannot meaningfully contribute to this objective.