Press Freedom and Investor-State Dispute Settlement: Past, Present and Future

This article argues in favour of the use of Investor-State Dispute Settlement (ISDS) as a mechanism for enforcing global freedom of the press. Commentators have increasingly recognized the potential of investor-State arbitration as a method for promoting good governance by host States. Given the shared preoccupation of international human rights law and ISDS with the protection of the individual against State action, it is unsurprising that the right to property, due process, and non-discrimination each has its analogue in investment treaty standards. This article summarizes disputes in which news and media organizations, as commercial actors, have successfully sought provisional measures and awards to address State controls on freedom of expression, through common investment protections such as Fair and Equitable Treatment (FET). Through this, the article highlights both the substantive and procedural advantages of this mode of dispute settlement, as well as the risks inherent in initiating arbitration against a State.