The 'contractualization' of investment arbitration

Freshfields' International Arbitration Senior Associate Diego Rueda will be moderating a panel titled "The 'contractualization' of investment arbitration" on November 19, 2025 during New York Arbitration Week 2025.

In recent years, global scrutiny of Investor–State Dispute Settlement (ISDS) mechanisms has intensified. In Latin America, this has manifested through denunciations of the ICSID Convention, withdrawals from bilateral investment treaties, and the imposition of stricter substantive and procedural limitations—all aimed at safeguarding state interests. Some states have begun to develop alternative approaches to investment protection—such as Argentina’s new investment regime (RIGI). Meanwhile, in Europe, the Court of Justice of the European Union has issued a series of decisions that have significantly curtailed intra-EU treaty arbitration. Critics of treaty-based ISDS point to a perceived lack of efficiency, unpredictability of outcomes, and imbalance between investor protections and state regulatory autonomy. In response to these concerns, a notable shift toward the “contractualization” of investment protection is emerging. Rather than relying solely on international treaties, states are increasingly offering contractual guarantees to foreign investors. This option provides a valid alternative to investors where there is no longer an offer to arbitrate or where the applicable treaties have become too restrictive.

Under the leadership of Professor Eduardo Silva Romero, the ICC Institute of World Business Law and UNIDROIT have launched a joint initiative focused on modernizing, harmonizing, and standardizing state–investor contracts. This panel will explore the current backlash against ISDS in Latin America and Europe, examine its implications under international law, and discuss alternative approaches to investment protection.

Moderator:

• Diego Rueda, Senior Associate, Freshfields

Speakers:

• Eduardo Silva Romero, Partner, Wordstone Dispute Resolution
• Christian Leathley, Partner, Herbert Smith Freehills Kramer
• Daniela Páez, Senior Associate, Herbert Smith Freehills Kramer; ALARB Next Generation Representative for the US
• María Inés Sola, Legal Manager, Pan American Energy
• Jose Luis Aragon Cardiel, Senior Legal Counsel, Permanent Court of Arbitration

For more information and to register, visit here.