With multilateral negotiations to reform investor-state dispute settlement (ISDS) now underway, it is legitimate to wonder about the outcome. Many seem to hope for a single, global reform, but that may be unrealistic in the near future. Indeed, the article by Sergio Puig and Gregory Shaffer and the essay by Anthea Roberts both suggest that states are pursuing a wide range of changes to the current system, some of which are incompatible with one another. A number of states prefer investment arbitration. Others favor an investment court. Still others reject international dispute settlement altogether. In this essay, I identify a collection of these options and argue that their number and variety, combined with the intensity of state preferences on the matter of ISDS reform, are likely to preclude a multilateral solution for the foreseeable future and lead to continued fragmentation.

There are two ways of thinking about institutional choice in the context of multilateral investment law reform. One starts from abstract principles, asking what policy goal investment law is supposed to achieve and what institutional choice most effectively advances that goal. The other draws on practical experimentation, asking what institutional choices states are making and how these choices perform in real life. Sergio Puig and Gregory Shaffer present a compelling analytical framework for the former, top-down approach to investment law reform. In this essay, I will scrutinize their analysis and argue that the latter, bottom-up approach is more promising.

The American Journal of International Law’s recent articles on the reform of investor-state dispute settlement (ISDS) make important contributions to ongoing debates. The article by Sergio Puig and Gregory Shaffer elaborates on the methods of investment dispute resolution—the various institutional innovations that states might pursue to improve the system. The essay by Anthea Roberts in turn explores the subjects of investment dispute resolution—states and their varying positions on reform. In our essay, we supply a third perspective by discussing the objects of ISDS—that is, the disputes themselves, which vary considerably from one case to another. We believe that considering methods, subjects, and objects together—what we refer to as a “trinity analytical framework”—could assist states as they formulate their positions in the reform process going forward. At the same time, we do not think that all reform options are equally meritorious, and we critique Puig and Shaffer's proposal for complementarity between municipal courts and international mechanisms as at best premature.

In their article Imperfect Alternatives: Institutional Choice and Reform of Investment Law, Sergio Puig and Gregory Shaffer develop a clear and discerning comparative framework to evaluate alternatives to the current system of investor-state dispute settlement (ISDS). In her essay Incremental, Systemic, and Paradigmatic Reform of Investor-State Arbitration, Anthea Roberts offers us a bracingly candid typology to describe the various actors involved in the recent efforts toward reform. My essay is meant to complement these excellent contributions and to focus unflinchingly on the tripartite role of the state itself. What I call the ISDS Trinity can be understood as shorthand for the state's systemic role as (1) law-giver, (2) protector of investment, and (3) respondent. Looking at current and future design trade-offs, I suggest that whether an institutional choice is embraced within the ISDS system has a lot to do with how well the reform validates each of these three roles. In this way, the ISDS Trinity offers further insight into how each state will approach the various trade-offs and intercamp dynamics described by Puig and Shaffer, and by Roberts, within the current debate. Put another way, the ISDS Trinity sheds additional light on whether a reform to the system will be well-received by a state and thus enjoy a greater chance of adoption.

Atul Gawande's Checklist Manifesto became a sensation in 2009 because it promised that a simple technique could powerfully discipline decision-making. Gawande had saved lives using hospital checklists, and he argued that checklists could improve outcomes in other complicated endeavors. Checklists, he explained, “provide a kind of cognitive net. They catch mental flaws.” Neil Komesar's method of comparative institutional analysis is by necessity messier than the checklist and does not claim to produce faultless policy-making. But Komesar similarly seeks to improve cognitive processing by imposing a disciplining framework on decision-making. Sergio Puig and Gregory Shaffer's effort to introduce Komesar's technique to the debate about foreign investment law reform is welcome. Their emphasis on tradeoffs among institutional alternatives helps us to appreciate the different contexts facing different nation states, the value of regime competition, and consequently, the importance of implementing reforms in ways that preserve a variety of options for states. If they persuade commentators and policy-makers to take stock of the tradeoffs among institutional alternatives, Puig and Shaffer will have made a meaningful contribution. Still, their analysis illustrates some of the weaknesses of comparative institutional analysis. In this essay, I identify those weaknesses and suggest that they also weigh in pluralism's favor.

Arbitration has long been the default mechanism for resolving international investment disputes. The traditional consensus favoring arbitration, however, has now given way, and reform proposals abound. The articles by Sergio Puig and Gregory Shaffer, on institutional choice and investment law reform, and by Anthea Roberts, on incremental, systemic, and paradigmatic reform of investor-state arbitration, helpfully situate the current controversies, debates, and reform options for states. Both articles reveal just how far and fast the debate has shifted in recent years. They also confirm states’ desire to exercise greater control over the regime for resolving international investment disputes. Many states continue to struggle to fully comply with their investment treaty obligations, to efficiently defend against investor claims, and to properly keep abreast of and shape developments in international investment law. Puig and Shaffer provide a useful framework for comparatively assessing possible institutional alternatives in light of their relative trade-offs. But any reform recommendations should draw lessons from states’ experience with the existing regime, including states’ significant problems of capacity. The merits of any reform proposals, therefore, should be measured in part by their ability to improve states’ capacity to cope with the existing investment protection regime and rapidly changing developments.