Judicialization Without Tenure: Principal and Regime Complexes in Investment Arbitration
33 Pages Posted: 23 Sep 2015 Last revised: 4 Nov 2015
Date Written: October 16, 2015
This article addresses the necessary and sufficient conditions of judicialization through a least likely case study: investment arbitration. Here, arbitrators are hired on a case-by-case basis. As a consequence, theory would predict they would develop little to no autonomy from states. Despite this, arbitrators display as much or more independence as adjudicators in other international courts. I develop two hypotheses to explain arbitrator autonomy, which I evaluate against rival explanations from the agency and trusteeship literatures: a "principal complex" limits states' influence over arbitral agents; and a "regime complex" limits states' influence over arbitral trustees. I introduce several new qualitative concepts, including "asymmetric legal fungibility", "forced loyalty", and "discursive impotence". The article is based on original interviews with arbitrators from over 90 percent of all 260 known cases that have been finalized over the lifespan of investment treaty arbitration (1990-present). I triangulate interviewees' perspectives with original datasets on quantitative case outcomes for the 260 cases, and digitized award texts. I conclude that tenure is not a necessary condition for judicialization, as it can be substituted for by other features.
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