The Return of the Home State and the Rise of ‘Embedded’ Investor-State Arbitration

Forthcoming in S. Lalani/ R. Polanco (eds), The Role of The State in Investor-State Arbitration (Martinus Nijhoff/BRILL, 2014)

30 Pages Posted: 30 May 2014

See all articles by Wolfgang Alschner

Wolfgang Alschner

University of Ottawa - Common Law Section

Date Written: October 20, 2013

Abstract

Prior to the advent of investor-State arbitration, the international enforcement of investment claims was an often contentious ‘ménage à trois’ between the home State, the host State and the foreign investor. Investor-State arbitration was meant to diffuse this contentious relationship by removing the home State from the settlement of investment disputes depoliticizing investment relations. Today, however, the investor’s home State is gradually re-entering the investment arbitration stage by four principle routes: (i) non-disputing party intervention, (ii) authoritative interpretations, (iii) renvoi of questions of fact and of law to State representatives and (iv) State-to-State arbitration. This article argues that we thus witness a fundamental transformation of investment arbitration: from a ‘pure’ form characterized by an insulation of investor-State proceedings from politics, we are moving towards an ‘embedded’ form of investor-State arbitration which retains the traditional core of direct opposition between investor and host States, but ‘embeds’ it in the context of stronger involvement of and control by the contracting States.

Keywords: Investment Law, Arbitration, Investor-State Arbitration, Depoliticization

Suggested Citation

Alschner, Wolfgang, The Return of the Home State and the Rise of ‘Embedded’ Investor-State Arbitration (October 20, 2013). Forthcoming in S. Lalani/ R. Polanco (eds), The Role of The State in Investor-State Arbitration (Martinus Nijhoff/BRILL, 2014). Available at SSRN: https://ssrn.com/abstract=2405393 or http://dx.doi.org/10.2139/ssrn.2405393

Wolfgang Alschner (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

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