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Empirically Evaluating Claims About Investment Treaty Arbitration

Susan D. Franck

Washington and Lee University - School of Law

North Carolina Law Review, Vol. 86, p. 1, 2007

With the blossoming of empirical legal scholarship, there is an increased appreciation for the insights it offers issues of international importance. One area that can benefit from such inquiry is the resolution of disputes from investment treaties, which affects international relations, implicates international legality of domestic government conduct, and puts millions of taxpayer dollars at risk. While suggesting there has been a "litigation explosion", commentators make untested assertions about investment treaty disputes. Little empirical work transparently explores this area, however. As the first research that explains its methodology and results, this article is a modest attempt to evaluate claims about investment treaty arbitration. The article explores: (1) who is involved in arbitration and what is arbitrated, (2) increases in awards, (3) win/loss rates, (4) amounts claimed and awarded, (5) arbitration costs, (6) use of other dispute resolution processes, and (7) nationality and gender of arbitrators. Subjecting these areas to empirical scrutiny provides information that sets the stage for future research to provide insights to government officials responsible for negotiating investment treaties and parties planning their dispute resolution strategies. Ultimately, it offers factual information - grounded in a valid and reliable process - that stakeholders and commentators can use to promote dialogue about and evaluate the legitimacy of a dispute resolution process with profound public implications.

Number of Pages in PDF File: 88

Keywords: Empirical Legal Studies, Law and Society, Investment Treaties, BIT, IIA, Investment Treaty Arbitration, Dispute Resolution, Dispute Systems Design, ICSID, Litigation Explosion, Litigotiation, Women and Law, OECD, Legitimacy

JEL Classification: C10, F02, F13, F21, K41, F30, H77, E22, H87, K33, K20, O10

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Date posted: March 15, 2007 ; Last revised: May 20, 2009

Suggested Citation

Franck, Susan D., Empirically Evaluating Claims About Investment Treaty Arbitration. North Carolina Law Review, Vol. 86, p. 1, 2007. Available at SSRN: http://ssrn.com/abstract=969257

Contact Information

Susan D. Franck (Contact Author)
Washington and Lee University - School of Law ( email )
Lexington, VA 24450
United States
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