March 30, 2011
What Is Going On In Investment Law?
Posted by David Zaring

There are two important forms of adjudication in international economic law.  One may be found in the WTO, the other in the welter of treaties that permit resort to tribunals in international investment law, which often reference an ad hoc right of review, often to a tribunal set up by ICSID.  This matters to foreign investors because it means that if the country in which they have invested treats them, say, differently than domestic investors, they needn't go to the local court, but can drag the sovereign into arbitration in DC, or Stockholm, or Paris, or wherever the investment treaty provides for a remedy.  At the annual meeting of the American Society of International Law, there was some sense of ferment in this latter form of adjudication.

  • You can't appeal an adverse decision in these cases - or can you?  The very technical and limited means that you could use to complain about a ruling - a decision was never issued, or the panel was constructed incorrectly - has recently, maybe, given way to "the panel didn't explain its decision," which is sort of close to "didn't explain why our argument wasn't correct."  If a right of appeal exists in this sort of law, it looks a little less like arbitration and a little more like, well, law.
  • What is the same treatment as between foreign and domestic investors anyway?  Is it the same thing as the national treatment principle in the WTO?  There was a panel at ASIL considering that very question, which I'm pretty surprised is still an open one.  My own view is that international finance is well on its way to adopting a national treatment principle sotto voce, but if various courts think that the principle means very different things, then finance's legal achievement will be limited.
  • And it's not even clear whether there's a common approach to fee and cost shifting in investment law.  Consider Susan Franck's recent paper, here's the abstract, which is a good way to familiar yourself with the latest greatest:

International investment and related disputes are on the rise. With national courts generally unavailable and difficulties resolving disputes through diplomacy, investment treaties give investors a right to seek redress and arbitrate directly with states. The costs of these investment treaty arbitrations — including the costs of lawyers for both sides, as well as administrative and tribunal expenses — are arguably substantial. This Article offers empirical research indicating that even partial costs could represent more than 10% of an average award. The data suggested a lack of certainty about total costs, which parties had ultimate liability for costs, and the justification for those cost decisions. Although there were signs of balance and a preference for parties to be responsible for their own costs, there was neither a universal approach to cost allocation nor a reliable relationship between cost shifts and losing. Awards typically lacked citation to legal authority and provided minimal rationale, and the justifications for cost decisions exhibited broad variation. Small pockets of coherence existed. Tribunals typically decided costs only in the final award; and as the amount investors claimed increased, tribunal costs also increased. Such a combination of variability and convergence can disrupt the value of arbitration for investors and states. In light of the data, but recognizing the need for additional research to replicate and expand upon the initial findings, this Article recommends states consider implementing measures that encourage arbitrators to consider specific factors when making cost decisions, obligate investors to particularize their claimed damages at an early stage, and facilitate the use of other Alternative Dispute Resolution (ADR) strategies. Establishing such procedural safeguards can aid the legitimacy of a dispute resolution mechanism with critical implications for the international political economy.

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