Development and Outcomes of Investment Treaty Arbitration

Harvard International Law Journal, Vol. 50, No. 2, Summer 2009

Washington & Lee Legal Studies Paper No. 2009-04

57 Pages Posted: 11 Jun 2009 Last revised: 1 Sep 2009

See all articles by Susan D. Franck

Susan D. Franck

American University - Washington College of Law


The legitimacy of investment treaty arbitration is a matter of heated debate. Asserting that arbitration is unfairly tilted toward the developed world, some countries have withdrawn from World Bank dispute resolution bodies or are taking steps to eliminate arbitration. In order to assess whether investment arbitration is the equivalent of tossing a two-headed coin to resolve investment disputes, this article explores the role of development status in arbitration outcome. It first presents descriptive, quantitative research about the developmental background of the presiding arbitrators who exert particular control over the arbitration process. The article then assesses how (1) the development status of the respondent state, (2) the development status of the presiding arbitrator, and (3) the interaction of these variables affect the outcome of investment arbitration. The results demonstrate that, at the macro level, development status does not have a statistically significant relationship with outcome. This suggests that the investment treaty arbitration system, as a whole, functions fairly and that the eradication or radical overhaul of the arbitration process is unnecessary. The existence of two statistically significant simple effects – namely that tribunals with presiding arbitrators from the developing world made smaller awards against developed states in particular circumstances – suggests that particularized reform could enhance the procedural integrity of arbitration. Irrespective of whether future research replicates the results, reforms targeted to redress possible imbalance in the system have the potential to enhance procedural justice and the perceived legitimacy of arbitration in an area with profound political and economic implications.

Keywords: Empirical Legal Studies, Law and Society, Investment Treaties, BIT, IIA, OECD, World Bank, Investment Treaty Arbitration, Dispute Resolution, Dispute Systems Design, ICSID, Legitimacy, Development

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

Suggested Citation

Franck, Susan D., Development and Outcomes of Investment Treaty Arbitration. Harvard International Law Journal, Vol. 50, No. 2, Summer 2009; Washington & Lee Legal Studies Paper No. 2009-04. Available at SSRN:

Susan D. Franck (Contact Author)

American University - Washington College of Law ( email )

4300 Nebraska Avenue, NW
Washington, DC 20016
United States

Register to save articles to
your library


Paper statistics

Abstract Views
PlumX Metrics

Under construction: SSRN citations will be offline until July when we will launch a brand new and improved citations service, check here for more details.

For more information