Dissecting Backlash: The Unarticulated Causes of Backlash and its Unintended Consequences

Abstract

References to “backlash” are becoming increasingly ubiquitous in international law scholarship. Few have, however, sought to define or unpack the complexities of backlash. In this chapter, we seek to develop a notion of “backlash”, identify what underlies it, and illuminate its potential unintended consequences. While we focus upon investment treaty arbitration as a case study, we endeavor to illuminate the complexities of evaluating opposition to international regimes. These issues hold particular relevance to investor-State arbitration given current State negotiations of major bi‑ and multi‑ lateral treaties with investor-State protections. They are also likely to gain in relevance with many investment treaties shortly coming up for renewal or termination.

Keywords: investment arbitration, backlash, international courts