USA Trends and Developments Contributed by: Matthew Kirtland, Denton Nichols and Courtney Hikawa, Norton Rose Fulbright US LLP
2025 (one week after President Biden left office) the US and Colombia issued a joint interpretation of their Trade Promotion Agreement (Decision No 9 of the Free Trade Commission of the United States–Colom - bia Trade Promotion Agreement, 15 January 2025). The purpose of this document was widely seen as being to deliberately narrow the treaty’s substantive protections for investors. Indeed, the Biden adminis - tration’s US Trade Representative (USTR) implied at the time that the joint interpretation would neuter “the ability of private corporations to attack labor, health, and environmental policies through ISDS” (Office of the USTR, Press Release, 20 January 2025). The second Trump administration does not appear intent on reversing the anti-IIA trend. A 2026 “Foreign Affairs” article authored by the first Trump adminis - tration’s USTR, who remains influential, provides a likely window into the current administration’s think - ing (Robert Lighthizer, The New Trade Order : Restor- ing Balance to a Broken Global Economy , “Foreign Affairs”, May/June 2026). • The article claims that “foreign interests own $27 trillion more of U.S. assets than the United States owns of theirs”, and attributes this imbalance to the “hyperglobalism” implemented by free trade regimes like NAFTA. • The article praises the current Trump administra - tion’s policy response to this and other perceived imbalances. It specifically lauds the securing of “pledges from many countries to make significant new investments in American industries” – none of which, however, come with reciprocal promises of US investment abroad, much less ISDS mecha - nisms to resolve disputes. Given this unilateral policy mindset, it appears unlikely that the current Trump administration will seek to enter into new IIAs or to otherwise promote ISDS mecha - nisms. The mandatory 1 July 2026 joint review of the USMCA offered an early indicator: the US declined to renew the agreement “in its current form”, leaving it in force but subject to further negotiations with Mexico and Canada. Although the scope of renegotiation remains to be seen, the decision signals an apparent continued reluctance to deepen – or even maintain – the existing framework for investor–state protections.
Despite these developments at the policy level, the US has stopped short of pursuing a total abandon - ment of existing IIA and ISDS regimes. To date, no presidential administration has taken formal steps to completely withdraw from the US’s existing network of IIAs, nor has any seriously considered denouncing the ICSID Convention – in contrast to certain Latin American governments. Moreover, the executive branch’s cooling on IIAs and ISDS has not meaningfully carried over to its sister branch, the judiciary: as discussed in the previous section, US courts continue to enforce investment awards entered against foreign states. Narrowed Pathways to Obtain Evidence in the US for Use in Arbitrations Abroad For decades, the United States served as a poten - tially powerful staging ground for taking evidence in support of arbitrations seated in other countries. The US Foreign Legal Assistance statute, more com - monly known as Section 1782, historically provided the legal backbone for this type of evidence taking. It authorises federal courts to order sweeping, US-style discovery – including out-of-court depositions and extensive document requests – from persons within their districts for use in a “proceeding in a foreign or international tribunal” (28 U.S.C. § 1782 (a)). For decades, controversy surrounded the use of Sec - tion 1782 to collect evidence for international com - mercial and investor–state arbitrations taking place outside the US. After the Supreme Court’s land - mark interpretation of Section 1782 in Intel Corp . v Advanced Micro Devices , Inc . (2004), federal appeals courts split on a key question: does a “foreign or inter - national tribunal” include only foreign courts, or does it also cover arbitration panels? The US Supreme Court settled this debate with its unanimous decision in ZF Automotive US , Inc . v Lux- share , Ltd . (2022), ruling that a qualifying “foreign or international tribunal” must be a decision-making body that exercises “governmental authority” del - egated by one or more national governments ( ZF Automotive US , Inc . v Luxshare , Ltd ., 596 U.S. 619, 633, 142 S. Ct. 2078, 2089, 213 L. Ed. 2d 163 (2022). Because private commercial arbitration panels derive
1147 CHAMBERS.COM
Powered by FlippingBook