The article provides an assessment of the European Commission’s recent proposal for reform in investor-state dispute settlement (ISDS) under the Trans-Atlantic Trade and Investment Partnership (TTIP). It does so on the basis of a public law theory of international adjudication that presents international courts and tribunals as multifunctional actors who exercise public authority and therefore require democratic legitimacy. The article introduces this understanding against the background of other, traditional basic conceptions of international courts and tribunals. It then focuses on the prospects of appellate review and politico-legislative input under the European Commission’s proposal for TTIP, as well as on the provisions pertaining to the arbitrators, the judicial process, and the judicial decisions. While the net merits of ISDS in the Trans-Atlantic context are uncertain, the article submits that the European Commission’s proposal provides, in principle, a welcome response to some of the more egregious shortcomings of investor-state arbitration.
The resurfacing interest in the New International Economic Order (NIEO) is mainly driven by the ambition of regaining a sense for past possibilities in order to question the present and to open up different futures. This ambition resonates with the core of critical thinking which pushes toward an appreciation of contingencies. What was possible? When approaching this question, however, historical inquiries must not overstate the possibilities of different action at the expense of determining structures. More specifically, they need to deal with the low degree of institutionalized politics on the international plane. And they need to counter a tendency toward excess nostalgia for that which was not. More than anything else, the history of the NIEO testifies to the great difficulties in turning claims about contingency into compelling narratives. Another way of approaching the NIEO, however, does not place actual possibilities at its centre, but unrealized potentials.