Thank you very much for the question.
“Independent” and “fair” are fairly straightforward, but it should be a judicial process instead of a private arbitration process. It doesn't have to be called a court, but it has to be designed in a way that you have the conventional safeguards of judicial independence, including a roster system in which the members are appointed by the states parties to the treaty. The roster members would not be allowed to have conflicting roles on the side as counsel in these cases, for example. There would be an objective way of assigning cases to the roster members. That would make it independent—even if you didn't call it a court—in a judicial sense.
With regard to fairness, there should be an opportunity for other parties who have an interest in the dispute. It might be a provincial government or a municipality whose decision is being challenged. It might be an individual whose reputation is being impugned in the proceeding. In any fair adjudicative process, they should have a right of standing in the process. That's another pretty straightforward fix, if you design it in a way that's judicially fair.
As for being respectful of domestic institutions, the main point there is that there should be, in NAFTA chapter 11, a duty to exhaust local or domestic remedies when they are reasonably available. That is the rule elsewhere in international law. It's very odd that foreign investors are allowed to skip domestic courts entirely without having to provide any evidence that there's anything wrong with the country's court system. That's the primary way, I think, to ensure that conventional way of respecting domestic institutions. It's to require foreign investors to use a country's domestic courts first unless they can show that there's some deep flaw in the courts that should allow them to skip them.
For balance, I would admit that this may be the most challenging to implement, but in principle it's just the conservative point that if foreign investors need a special system to protect them because of some failing of domestic institutions in a country, then there should be a way to hold foreign investors to basic responsibilities within the same process. You shouldn't have really powerful rights in international law without some responsibilities that are enforceable in the same process.
Implementing that can take different forms. It could be something such as a preliminary step of having enhanced requirements for information sharing, where the home government of the foreign investor is obliged to share information about that investor in the home country. For example, if there's a prosecution for some kind of regulatory offence and there's an interest in accessing bank accounts of a foreign subsidiary and that kind of thing, building that into the system would help to make it balanced in the allocation of rights and responsibilities.
Those are some thoughts. I thank you again for the question.