The State of Investor-State Arbitration-Some Reflections on Professor Brower's Plea for Sensible Principles

Abstract:     
This article provides a reply to the framework introduced by Professor Brower in "Mitsubishi, Investor-State Arbitration, and the Law of State Immunity." Specifically, it discusses current developments within Professor Brower's six-point framework: (1) suppression of vexatious litigation; (2) level of discretion granted to adjudicators; (3) entitlement of states to claim benefit of all doubt in close cases; (4) adoption of mechanisms to promote uniformity of decision; (5) rejection of post-judgment proceedings that consistently claim to rob claimants of their victories; and (6) elimination of any role for political entities in the decision-making process. The developments described are related to select arbitration cases, including Methanex, United Parcel Service, Feldman, S.D. Myers, and Loewen, under some of the major international investment agreements, including NAFTA Chapter 11, CAFTA, the the Singapore-U.S. Fair Trade Agreement, the U.S-Uruguay Bilaterial Investment Treaty, and other bilateral agreements.

Number of Pages in PDF File: 28

Keywords: arbitration, investor-state arbitration, litigation, vexatious litigation, international, investment, investment agreements, NAFTA, NAFTA Chapter 11, CAFTA, fair trade, bilateral investment treaty

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