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Managing Backlash: The Evolving Investment Treaty Arbitrator?

European Journal of International Law, Forthcoming

PluriCourts Research Paper No. 16-14

28 Pages Posted: 8 Sep 2016 Last revised: 15 Nov 2016

Malcolm Langford

University of Oslo, Faculty of Law, Department of Public and International Law

Daniel Behn

PluriCourts, University of Oslo; Pennsylvania State University, Penn State Law

Date Written: September 6, 2016

Abstract

Have investment treaty arbitrators responded to the so-called ‘legitimacy crisis’ that has beleaguered the international investment regime in the past decade? There are strong rational choice and discursive-based reasons for thinking that arbitrators would be responsive to the prevailing ‘stakeholder mood.’ However, a competing set of legalistic and attitudinal factors may prevent arbitrators from bending towards the arc of enhanced sociological legitimation. This article draws upon a newly created investment treaty arbitration database to analyze the extent and causes of a shift in treaty-based arbitration outcomes. The evidence suggests that arbitrators are conditionally reflexive: sensitive to both negative and positive signals from states, especially vocal, influential and developed states.

Suggested Citation

Langford, Malcolm and Behn, Daniel, Managing Backlash: The Evolving Investment Treaty Arbitrator? (September 6, 2016). European Journal of International Law, Forthcoming ; PluriCourts Research Paper No. 16-14. Available at SSRN: https://ssrn.com/abstract=2835488

Malcolm Langford (Contact Author)

University of Oslo, Faculty of Law, Department of Public and International Law ( email )

P.O. Box 6706 St. Olavs plass
N-0130 Oslo
Norway

Daniel Behn

PluriCourts, University of Oslo ( email )

P.O. Box 6706, St. Olavs Plass 5
0166 Oslo
Norway

Pennsylvania State University, Penn State Law ( email )

Lewis Katz Building
University Park, PA 16802
United States

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