Sure.
One of the biggest criticisms is that it's a secretive process. There have been a number of witnesses who have mentioned that treaties have already injected a fair bit of transparency into that process. Of course, that's reflected in what might be called the gold standard in article 8.36 on transparency of proceedings. People keep coming back to the fact that these are secret tribunals and there's no opportunity for input. I think that's misinformed.
Another big criticism is that arbitrators are selected from, again, a very narrow pool. Some people refer to it as sort of an arbitration mafia, or a club. I think if you really look at it.... I suppose I have a foot in that group, but it's just like any group of specialists. If you took a group of international surgeons who did one particular type of surgery, you wouldn't call them a mafia or a club.
The fact is that there is a certain degree of expertise that's required. If you look at the qualifications that have been agreed to in this treaty, you see that it says in article 8.274:
The Members of the Tribunal shall possess the qualifications required in their respective countries for appointment to judicial office.... They shall have demonstrated expertise in public international law. It is desirable that they have expertise in particular, in international investment law, in international trade law and the resolution of disputes arising under international investment or international trade agreements.
The reality is that's not going to be every lawyer in the world. It's going to be a select group of people. In fact, selecting arbitrators from a small group can be seen as a positive. You're actually selecting people who are qualified.
The other criticism is that investment arbitration awards have had a chilling effect on the ability of states to regulate, or that they can make countries change their laws. That's just not true. Investment awards can award monetary compensation where there's a finding of a breach of international law. That doesn't mean that the country has to change its policy; it means that in respect of that case, they might be held to owe some money.
More importantly, many of the criticisms in respect of a chilling effect relate to claims that have been brought by investors but don't relate to actual awards. A classic example is the case that was brought against Australia by Philip Morris in respect of tobacco legislation. People raised a big stink and said, “This is impossible. You have a big global company, a tobacco company, going after legitimate policy.” Well, it's true that they're having a go at it, but the award hasn't been rendered yet. I would say, why not withhold criticism of the system until you have an award? The award may well decide that there hasn't been a breach of the treaty.
I don't know. I'm not involved in the case, but if you—