A Latin American View on the CETA Investment Chapter

The CETA Investment Chapter incorporates several of the substantive and procedural refinements developed in recent international investment policy-making. In particular, the agreement establishes a permanent investment court as an alternative to traditional investor-State dispute settlement (ISDS). The underlying concerns driving the current European Union (EU) proposal for reforming ISDS are very similar to the concerns that inspired the Calvo doctrine in Latin America in the nineteenth century. Inspired by the CETA Investment Chapter, the EU proposes the establishment of a multilateral investment court with an appeals mechanism. A similar proposal is under consideration at the United Nations Commission on International Trade Law (UNCITRAL). Consequently, it is quite likely that the proposal for a multilateral court will soon be considered by Latin American countries, whose reactions are expected to reflect their diversified views on ISDS. In spite of the denunciation of the ICSID Convention and of some bilateral investment treaties by certain countries in the region, most Latin American countries have, in general, a positive attitude towards ISDS and might be supportive of the creation of a multilateral investment court. Yet, there are other emerging alternatives in parallel to the EU alternative, which are currently under consideration by several Latin American countries in other fora. It remains still unclear which reform alternative will to prevail and it is likely that international investment regime will be relying on traditional investor-State dispute settlement for the next years. The present contribution seeks to present and discuss the diverse positions of Latin American countries and their potential reaction to the proposal of a multilateral court.