Differentiating Among International Investment Disputes

Abstract

Can investor-state arbitration tribunals, which exercise jurisdiction over limited claims involving discrete parties, render awards that deliver individualized justice while also promoting systemic fairness, predictability and coherence? The answer, I argue, is a qualified yes – provided that the methods employed are tailored to the particular characteristics of each dispute. Using three well-known investment arbitrations as case studies, I illustrate that investor-state disputes vary widely in terms of their socio-legal, territorial, and political impacts. Significant variances along these three dimensions call for a differentiated approach to investor-state dispute resolution. I outline what such an approach might look like and analyze how much room there is to implement it within the current framework of the regime. While some improvements can be made through arbitrator-led efforts in the short term, what is needed in the medium term is a systemic restructuring that funnels different classes of investor-state claims into different types of dispute resolution mechanisms that better comport with the claims’ underlying characteristics.

Keywords: differentiation, investment, arbitration, bilateral investment treaties, dispute resolution, investor-state