To ISDS or not to ISDS: A question of legitimacy in dispute resolution

Investor State Dispute Settlement (ISDS) has gained prominence in recent years with an explosion in the number of investor claims against states. While the evolution of this type of arbitration was expected, its focus and context was not. Investors are currently bringing actions against developed states in unanticipated policy areas. Greece, facing actions from investors challenging its debt haircut and Spain, battling investor challenges to its revamped energy policy are examples of the use of arbitration as a political as well as a dispute resolution tool. It is for this reason why the proposal for the inclusion of ISDS in the Transatlantic Trade and Investment Partnership (TTIP) has caused so much heated discussion. This paper examines the recent evolution and likely trajectory of investor state dispute settlement, reflecting on consequences for perceptions of arbitration and its links with politics and economics.

The paradox of competition for airline passengers with reduced mobility (PRM)

Airline competition with customer service as product differentiator has forced down costs, air fares and investor returns. Two passenger markets operate in aviation: (a) able-bodied passengers for whom airlines compete and (b) passengers with reduced mobility (PRMs) – disabled by age, obesity or medical problems – for whom airlines do not compete. Government interference in the market intended to protect a minority of narrowly-defined PRMs has had unintended consequences of enabling increasing numbers of more widely-defined PRMs to access complimentary airline provisions. With growing ageing and overweight populations and long-haul travelling medical tourists such regulation could lead to even lower investors’ returns. The International Air Transport Association (IATA) (2013) examined the air transport value chain for competitiveness using Porter’s (2008) five forces but did not distinguish between able-bodied passengers and PRMs. Findings during an investigation of these two markets concurred with IATA-Porter that the markets for the bargaining powers of PRM buyers and PRM suppliers were highly competitive. However, in contrast to the IATA conclusions, intensity of competition, and threats from new entrants and substitute products for PRM travel were low. The conclusion is that airlines are strategically PRM defensive by omission. Paradoxically, the airline which delivers the best PRM customer service could become the least profitable.

The paradox of competition for airline passengers with reduced mobility (PRM)

Airline competition with customer service as product differentiator has forced down costs, air fares and investor returns. Two passenger markets operate in aviation: (1) able-bodied passengers for whom airlines openly compete and (2) passengers with reduced mobility (PRMs) – disabled by age, obesity or medical problems – for whom airlines do not compete. Government interference in the market intended to protect a minority of narrowly-defined PRMs has had unintended consequences of enabling increasing numbers of more widely-defined PRMs to access complimentary airline provisions. With growing ageing and overweight populations and long-haul travelling medical tourists such regulation could lead to even lower investors’ returns. The International Air Transport Association (IATA) (2013) examined the air transport value chain for competitiveness using Porter’s (2008) five forces but did not distinguish between able-bodied passengers and PRMs. Findings during an investigation of these two markets concurred with IATA-Porter that the markets for the bargaining powers of PRM customers and PRM suppliers were ‘highly competitive’. However, in contrast to the IATA conclusions the threats posed by new entrants, substitute products and intensity of competition for PRM passengers were all ‘low’. The conclusion is that airlines are strategically PRM defensive by omission. Paradoxically, the airline which delivers the best PRM customer service could become the least profitable.