Are Investment Tribunals Adjudicating Political Disputes? Some Reflections on the Repoliticization of Investment Disputes and (New) Forms of Diplomatic Protection

Abstract

Conceived from its inception as a tool for the depoliticization of disputes involving a foreign investor and a sovereign state, Investor-State Dispute Settlement (ISDS) has emerged as a popular alternative to state justice and diplomatic protection and it has evolved into the centerpiece and guarantor of the international system of investment protections. And yet, despite the common perception of its neutrality as a forum for the non-political resolution of disputes, the scope of subject matters that fall within the purview of arbitral control and the utilization of political means by states and investors alike in order to interfere with or influence the arbitral process shed light on some unusual aspects of investment arbitration and reveal that ISDS has been heading down a trajectory of repoliticization.

Keywords: repoliticization, depoliticization, investment arbitration, ISDS

JEL Classification: F02, F13, F21, F53, K41, K39, K40, K10, K33, K49, K12, K19, K20, K29, H70, E22, H87, F50, F52