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

Geir Ulfstein and Andreas Føllesdal (eds), The Judicialization of International Law - A Mixed Blessing? (Oxford University Press, Forthcoming)

TLI Think! Paper 37/2016

King's College London Law School Research Paper No. 2016-37

26 Pages Posted: 4 Sep 2016 Last revised: 29 Sep 2016

See all articles by David D. Caron

David D. Caron

King's College London – The Dickson Poon School of Law (deceased); University of California, Berkeley, School of Law (deceased)

Esme Shirlow

ANU College of Law

Date Written: June 29, 2016

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

Suggested Citation

Caron, David D. and Shirlow, Esme, Dissecting Backlash: The Unarticulated Causes of Backlash and its Unintended Consequences (June 29, 2016). Geir Ulfstein and Andreas Føllesdal (eds), The Judicialization of International Law - A Mixed Blessing? (Oxford University Press, Forthcoming); TLI Think! Paper 37/2016; King's College London Law School Research Paper No. 2016-37. Available at SSRN: https://ssrn.com/abstract=2834000 or http://dx.doi.org/10.2139/ssrn.2834000

David D. Caron

King's College London – The Dickson Poon School of Law (deceased)

University of California, Berkeley, School of Law (deceased)

Esme Shirlow (Contact Author)

ANU College of Law ( email )

Canberra, Australian Capital Territory 0200
Australia

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