The Way Forward

To synthesize preceding chapters and point the way forward, Chapter 9 first identifies the need for enhanced transparency on costs and rationalization, particularly in early stages of disputes to manage expectations and create efficiencies. Second, it identifies relative costs and benefits of ITA, arguing an increased focus on non-adjudicative dispute resolution is warranted while acknowledging those mechanisms only work effectively when legitimate adjudication permits parties to negotiate “in the shadow of the law.” Third, the chapter explores ICSID’s proposals to foster a dialogue about costs. Fourth, it advocates changing cost-shifting norms toward a factor-dependent model. Recalling potential limitations, it concludes that for international investment dispute resolution to foster rule-of-law adjudication that is efficient, fair, reliable, and rationalized, stakeholders should implement structural safeguards to focus on appropriate dispute resolution to promote cost containment, predictability, and sustainable dispute resolution in an era of re-emerging nationalization and a backlash against international law.