Should we tame it, cage it or kill it? Past criticism, present developments and future imperatives for foreign investment protection in light of the IPA-SA, TPP and CETA

Criticism of the international investment protection system has led to a widespread discussion on required changes and reforms. This concerns the substantive standards of protection as well as the resolution of disputes between states and investors. Contrary to expectations for greater convergence, current reforms steer in different directions and thereby strengthen different underlying perceptions and paradigms of the compounded investment system. Analysis of three recent instruments representing major current trends in international investment protection approaches – namely the investment protection act of South Africa (IPA-SA) and the investment chapters in both the Trans-Pacific Partnership (TPP) and the Comprehensive Economic and Trade Agreement (CETA) – reveals that while on the one hand different shortcomings of the current system may be resolved in one instrument or the other, none of them engages sufficiently with the underlying structural questions. Those structural questions bear the imperatives for further developing the investment protection system.