Arbitral Lawmaking and State Power: An Empirical Analysis of Investment Arbitration

Journal of International Dispute Settlement, 2017

31 Pages Posted: 18 Feb 2017 Last revised: 22 Jul 2017

Date Written: February 17, 2017

Abstract

The paper focuses on arbitral lawmaking (the development of precedent-based frameworks of argumentation and justification), and state responses to that lawmaking (as registered in subsequent treaty-making). The paper reports analysis of: (i) all publicly-available awards (n=159) in which tribunals resolved disputes under the headings of expropriation and fair and equitable treatment, and under an umbrella clause; and (ii) investment treaties signed between 2002 and 2015 (n=398), when available in English. Three findings deserve emphasis. First, in most disputes, investors do not challenge general state measures; when they do, they are far less to prevail than when they contest acts specifically targeting their investments. Second, the evidence does not support the view that arbitral doctrine produces outcomes that are biased against states. In the vast majority of awards, tribunals take seriously the respondent state’s ‘right to regulate’ in the public interest. Third, the regime has not generated strong ‘backlash’ in any systemic sense. States continue to sign investment treaties; the mix of treaty protections on offer has remained remarkably stable; and new treaties have largely consolidated the case law that the most influential tribunals had already developed.

Suggested Citation

Stone Sweet, Alec and Chung, Michael and Saltzman, Adam, Arbitral Lawmaking and State Power: An Empirical Analysis of Investment Arbitration (February 17, 2017). Journal of International Dispute Settlement, 2017, Available at SSRN: https://ssrn.com/abstract=2919723 or http://dx.doi.org/10.2139/ssrn.2919723

Alec Stone Sweet (Contact Author)

HKU ( email )

Pokfulam Road
Hong Kong, Hong Kong
China

Michael Chung

Independent

Adam Saltzman

Independent ( email )

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