I'm not against lawyers making money either, because I still am a lawyer.
It's more about the so-called judge, who sits working on the side as a lawyer, not having a set salary, not having security of tenure, and not having the conventional safeguards of institutional independence we're used to in public law that are all missing in ISDS.
What is the alternative, and how should foreign investors be protected in the world?
Foreign investors in the marketplace should make judgments about which country they're going to invest in based on the risks that everyone assesses in the marketplace about particular countries. The primary place to go is domestic court. What should be part of their risk assessments are domestic courts in particular countries. If they're not happy with the reliability of domestic courts in a particular country, they can buy political risk insurance in the marketplace. They can also negotiate for arbitration clauses in their contracts, especially with government entities.
When it comes to the international level, I think there's a role for state-to-state international adjudication, like at the World Trade Organization, where the remedy is a forward-looking remedy that doesn't create anywhere near the same regulatory chill that the retrospective damages awards in ISDS create.
I do think there may be a role for ISDS with respect to some countries, but it should come with a duty to exhaust local remedies and a duty to go to the local courts, unless the foreign investor can show there's something wrong with the domestic courts and they shouldn't be held to that requirement.
That's the standard approach in customary international law and under other treaties that allow private claims against the state. It creates room, as you'll understand as a lawyer, for all kinds of mischief when you can skip domestic courts, or go to them first and then challenge their decisions. Even in Canada, with the experience under NAFTA and ISDS, there's some pretty troubling examples of that.