Predicting Outcomes in Investment Treaty Arbitration

68 Pages Posted: 6 Jan 2016

See all articles by Susan D. Franck

Susan D. Franck

American University - Washington College of Law

Lindsey E. Wylie

University of Nebraska at Lincoln

Date Written: December 17, 2015

Abstract

Crafting appropriate dispute settlement processes is challenging for any conflict management system, particularly for politically sensitive international economic law disputes. As the United States negotiates investment treaties with Asian and European countries, the terms of dispute settlement have become contentious. There is a vigorous debate about whether investment treaty arbitration (ITA) is an appropriate dispute settlement mechanism. While some sing the praises of ITA, others offer a spirited critique. Some critics claim ITA is biased against states, while others suggest ITA is predictable but unfair due to factors like arbitrator identity or venue. Using data from 159 final cases derived from 272 publicly available ITA awards, this Article examines outcomes of ITA cases to explore those concerns. Key descriptive findings demonstrate states reliably won a greater proportion of cases than investors; and for the sub-set of cases investors won, the mean award was US $45.6 million with mean investor success rate of 35%. State success rates were roughly similar to respondent-favorable or state-favorable results in whistleblowing, qui tam, and medical malpractice litigation in U.S. courts. The Article then explores whether ITA outcomes varied depending upon investor identity, state identity, the presence of repeat-player counsel, arbitrator-related, or venue variables. Models using case-based variables always predicted outcomes whereas arbitrator-venue models did not. The results provide initial evidence that the most critical variables for predicting outcomes involved some form of investor identity and the experience of parties’ lawyers. For investor identity, the most robust predictor was whether investors were human beings, with cases brought by people exhibiting greater success than corporations; and when at least one named investor or corporate parent was ranked in the Financial Times 500, investors sometimes secured more favorable outcomes. Following Mark Galanter’s scholarship demonstrating repeat player lawyers are critical to litigation outcomes, attorney experience was also critical to ITA outcomes. For investors, investors with experienced counsel were more likely to obtain a damage award against a state, whereas, states retaining experienced counsel were only reliably associated with decreased levels of relative investor success. Although there was variation in outcomes, ultimately, the data did not support a conclusion that ITA was completely unpredictable; rather, the results called into question critiques of ITA and did not prove ITA is a wholly unacceptable form of dispute settlement.

Keywords: Empirical Legal Studies, International Economic Law, Law and Society, Investment Treaties, Bilateral Investment Treaties, BIT, IIA, Investment Treaty Arbitration, Dispute Resolution, TPP, TTIP, ISDS, ICSID, Polity IV, OECD, Lawyers, Repeat Players

JEL Classification: C00, C10, F01, F02, F13, F23, F21, F30, K1, K4, K20, K33, K41, O16, H77, H88, E22, C50

Suggested Citation

Franck, Susan D. and Wylie, Lindsey E., Predicting Outcomes in Investment Treaty Arbitration (December 17, 2015). Duke Law Journal, Vol. 65, 2015, Available at SSRN: https://ssrn.com/abstract=2579742

Susan D. Franck (Contact Author)

American University - Washington College of Law ( email )

4300 Nebraska Avenue, NW
Washington, DC 20016
United States

Lindsey E. Wylie

University of Nebraska at Lincoln ( email )

Lincoln, NE 68588
United States

Here is the Coronavirus
related research on SSRN

Paper statistics

Downloads
418
Abstract Views
2,015
rank
76,038
PlumX Metrics