No Western publication on international investment law (IIL) has ever specifically undertaken a comparative study of Russian and Western doctrines of IIL. Although Russian scholars often contrast Western and Russian approaches to international law, scholars in the West mostly proceed without any discussion of Russian practice and perspectives. To fill this gap, this essay introduces the Russian approach to IIL and contrasts it with its Western counterpart. In particular, we show that the Russian approach focuses far more extensively on the nature and categorization of IIL and treats IIL primarily as private international law rather than public international law. The distinctive Russian approach has practical relevance for states and scholars, in part because it helps to explain why Russia has resisted efforts to reform investor-state dispute settlement.

International arbitration before Western-based institutions is the dominant mode of investor-state dispute settlement (ISDS). The Washington-based International Centre for Settlement of Investment Disputes (ICSID), the Hague-based Permanent Court of Arbitration, the Arbitration Institute of the Stockholm Chamber of Commerce, and the International Court of Arbitration of the Paris-based International Chamber of Commerce handle the vast majority of the world's international investment disputes. ICSID alone administers over sixty percent of the cases, while the others account for an additional twenty percent. Yet China has begun to innovate in ISDS over the last few years. These innovations have taken three main forms. The first is the extension of the jurisdiction of existing commercial arbitral institutions in China to cover foreign investment disputes. The second is the creation of new Chinese courts to possibly handle contractual investment disputes. The third is the formation of joint arbitration centers with states in regions where China invests heavily, such as Africa. This essay describes these changes and argues that they should be understood as reflecting an important facet of China's broader international strategy. In particular, the recent innovations aim to furnish adequate protection to Chinese investors in foreign countries, particularly developing states; actively shape international discourses on international investment law; and offer alternative, Chinese-initiated institutions that will break the monopoly of the West.

Many states use investment treaties to spur economic development by granting legal protections to foreign investors and providing for direct enforcement before international arbitral tribunals. Yet South Africa has taken a different course. As explained below, South Africa originally signed onto a number of investment treaties despite barely considering how the resulting obligations would affect its constitutional commitments and the authority of its domestic courts. After the shock of losing its first two treaty-based investment disputes, the country shifted from avidly entering into bilateral investment treaties (BITs) to opposing BITs absent compelling economic and political reasons to conclude them. Today South Africa seeks to replace investment treaties and investor-state arbitration with protections under domestic legislation, along with mediation and dispute resolution before domestic courts. In this essay, I describe this shift and explore three difficult and yet-to-be-resolved questions that it presents: (1) Will foreign investors still be able to rely on protections under international law when bringing domestic cases? (2) If so, will the South African Constitution, as a matter of domestic law, displace any relevant commitments under international law? And (3) is the new South African approach consistent with international law?

Brazil, Russia, India, China, and South Africa (the BRICS) have emerged as a new hub of power in international relations. They have begun to speak out jointly on a wide range of issues and to explore cooperating collectively. For instance, they strongly urge the Bretton Woods institutions to address their legitimacy deficits by transferring substantial voting power to emerging powers, and suggest that failure to do so will “run the risk of seeing [those institutions] fade into obsolescence.” The investment treaty regime may be another field in which they can exert influence, but the investment treaty policies of BRICS countries are diverging now more than ever. In particular, India and South Africa have taken significant measures, such as terminating investment treaties, that cast doubt on whether the BRICS can play a collective role in reforming such treaties. In this essay, I make two arguments. First, the recent investment treaty policies of some BRICS (India, South Africa, and to some extent Brazil) have shifted from one imbalanced approach that is too protective of foreign investors to another that is too protective of host states and is likely to be rejected by major powers such as the European Union, the United States, and China. Second, the BRICS together have the ability to craft approaches to investment treaties that encourage greater balance in the regime overall, including by remedying some of the defects inherent in the traditional investment treaties.

There is much rethinking being done about investment treaties. While some level of uniformity existed when there was institutional direction by the World Bank and hegemonic pressure exerted by states in the Global North, geopolitical power is now shifting in ways that are producing greater diversity in approaches to the field. The evidence seems to indicate that each state that is of sufficient size or power will seek to fashion its foreign investment policy in the context of its own circumstances. This is certainly true for Brazil, Russia, India, China, and South Africa (the BRICS). Within this group of newly industrializing countries, it is clear that a uniform approach to investment treaties will not emerge, despite avowals to the contrary. In this essay, I offer an assessment of the divergent paths some of these states have taken. I contend that China has emerged as a newly hegemonic actor in international investment in a way that undermines its traditional role as champion for the Third World, and that India's recent attempt to develop a “balanced approach” to investment treaties is unworkable. Only South Africa has developed an approach that seeks to protect its government's ability to serve the goals of its people by subjecting foreign investment disputes to South African law and courts.

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.

The Trump Administration is taking direct aim at California's global leadership on climate change. The U.S. Environmental Protection Agency (EPA) is proposing to revoke the most effective tool California has to exercise climate leadership: its special authority under federal law to regulate tailpipe emissions more stringently than the federal government. California's use of this authority has led to the invention of automotive technology now standard around the world, including the catalytic converter. The state also used this power in 2002 to enact the globe's first greenhouse gas standards for automobiles. If the Trump Administration succeeds in revoking California's authority, California will find it very difficult to meet its ambitious 2030 greenhouse gas target. The attack on the state's authority will also undermine other states’ efforts to cut their greenhouse gas emissions as well as conventional air pollutants, since thirteen states follow California's standards in whole or in part. And the Trump Administration's revocation will undercut California's role as a green technology innovator by eliminating the strongest regulatory signal the state sends to automotive entrepreneurs. The last result is perhaps the most pernicious of all, because the state's role as a green technology leader has the capacity to help reduce greenhouse gas emissions around the world.

President Trump has done the impossible: he has made the international community enthusiastic about U.S. federalism. Even as they express dismay at Trump's plan to abandon the Paris Agreement, foreign leaders and internationalists have praised the efforts of  U.S. states and cities to combat climate change mitigation in accordance with the Agreement's goals. These leaders are responding to what I will call the outer face of foreign affairs federalism—the direct international engagement undertaken by U.S. states and cities. This outer face has gained visibility in recent years, spurred on not only by the exigencies of climate but also by developments in legal practice. Less noticed internationally but of great practical importance is the inner face of foreign affairs federalism—the ways in which U.S. states and cities interact with the federal government. In this contribution, I first describe these two faces of foreign affairs federalism as they relate to climate and then suggest some ways in which foreign leaders and internationalists could expand the outer face and respond to the inner face.

After more than two decades of inadequate international efforts to address climate change resulting from rising greenhouse gas emissions, the 2015 Paris Climate Change Agreement shifted gears. That agreement advances a “bottom-up” model of global cooperation that requires action commitments from all national governments and acknowledges the important role that cities, states, provinces, and businesses must play in delivering deep decarbonization. Given the limited control that presidents and prime ministers have over many of the policies and choices that determine their countries’ carbon footprints, the Paris Agreement missed an opportunity to formally recognize the climate change action commitments of mayors, governors, and premiers. These subnational officials often have authorities complementary to national governments, particularly in federal systems (including the United States, China, Canada, and Australia). They therefore possess significant independent capacities to reduce greenhouse gas emissions through their economic development strategies, building codes, zoning rules and practices, public transportation investments, and other policies. Likewise, the world community missed an opportunity to formally recognize the commitments of companies to successful implementation of the Paris Agreement and thereby to highlight the wide range of decisions that business leaders make that significantly affect greenhouse gas emissions.

On June 1, 2017, President Trump declared that the United States would “cease all implementation of the non-binding Paris Accord and the draconian financial and economic burdens the agreement imposes on our country.” The United States’ de facto withdrawal from the Paris Agreement represented an important inflection point for conceptualizing the role of nonstate actors in addressing climate change. President Trump's announcement was met with an outpouring of resistance and widespread and concerted efforts to mobilize substate, nonprofit, and private actors to step into the void created by his announcement and to help keep the United States on track to pursue domestic and international commitments to address climate change despite federal recalcitrance. Within the leadership void created by the Trump Administration and amidst the increasingly extensive body of sub- and nonstate climate efforts, it is tempting to decenter the role of the state or to underestimate the persistent power of the state to shape the approach and effectiveness of nonstate actions. Failing to recognize that the state retains significant power in this field undermines efforts to understand the realities within which nonstate actors operate. This creates a set of heightened expectations for these actors that defies the reality of the political, economic, and social resources available to them and masks the challenges inherent in relying upon a fragmented, shifting, and differently accountable set of actors to effect pervasive change.

In his recent piece in the American Journal of International Law, B.S. Chimni depicts a doctrine of customary international law that has allowed the First World to impose its domination and promote its version of global capitalist justice. From Chimni's perspective, all the gimmicks and sophisticated dichotomies invented by international lawyers to refine international customary law serve a hegemonic socialization process whereby the center imposes its neoliberal ideals on an admiring periphery. But this diagnosis is certainly not the end of the story. In fact, Chimni's dismal image of the world and the role of custom therein is meant to foreground a more central project—i.e., the reinvention of customary international law around “the progressive ideas, beliefs, and practices of the global civil society” and geared towards the promotion of the “common good.” My view is that Chimni's postmodernization of the doctrine of international customary law does not necessarily remedy the charges he levels against custom, let alone redefine the center and the periphery. As much as I share his diagnosis about custom's complicity in hegemonic socialization and the promotion of a global capitalist ethos, I contend that Chimni's postmodernization is at best unavailing and, at worse, rehabilitative of the First World's centrality in norm-setting. Instead of striving to reinvent the doctrine of custom, we must invest in strategies that draw on the malleability and fluidity of the current doctrine and facilitate the types of argumentation that “decenter” the First World, thereby directly empowering international lawyers elsewhere.

B.S. Chimni's Customary International Law: A Third World Perspective announces a provocative normative approach to customary international law (CIL) designed to develop progressive norms by deemphasizing state practice and promoting deliberative reasoning as the basis for opinio juris rather than the general acceptance of states. Many of his historical concerns are compelling: the unfairness and dubious validity of the persistent objector principle, the lack of access and attention to non-European state practice, and the questionable legitimacy of CIL norms developed without the participation of a majority of states or their consent. While Chimni makes a compelling case for the problematic origins of much of CIL, his approach to reform raises serious legitimacy and practical questions that undermine the viability of his proposed solution. Problems such as extreme poverty, environmental degradation, and nuclear weapons are best resolved through democratic political institutions rather than weak and undemocratic international tribunals. I will analyze Chimni's approach first as a theory of customary law and then as a theory of the role of international tribunals. Finally, I will raise concerns about his normative goals.