What's in a Meme? The Truth about Investor-State Arbitration: Why It Need Not, and Must Not, Be Repossessed by States

89 Pages Posted: 26 Sep 2017

See all articles by Charles N. Brower

Charles N. Brower

The Iran-United States Claims Tribunal

Sadie Blanchard

Notre Dame Law School

Date Written: December 1, 2014

Abstract

The current discourse on international investment law and investor-State arbitration is replete with inaccuracies and hypothetical fears. Certain quarters are clamoring for sweeping changes that would undermine the effectiveness of foreign investment protection by politicizing the existing neutral, juridical system for resolving investor-State disputes. With the impending expiration of over 1,000 investment treaties and the negotiation of two trade and investment treaties that would cover 65% of the world economy, the system stands at a watershed moment, calling for a comprehensive rebuttal to critics. We argue that proposals to politicize dispute settlement — by giving states control over adjudicators, introducing self-judging defenses, permitting retroactive treaty amendment through state practice, or relaxing the rules of treaty interpretation — should be rejected. The evidence demonstrates that investment treaties and arbitration benefit poor states, are even-handed, enhance transparency, allow states ample regulatory leeway, and promote the rule of law.

Keywords: Investor-State Dispute Settlement, Investment Arbitration, BITs, Foreign Direct Investment, Investment Dispute Reform

Suggested Citation

Brower, Charles N. and Blanchard, Sadie, What's in a Meme? The Truth about Investor-State Arbitration: Why It Need Not, and Must Not, Be Repossessed by States (December 1, 2014). Columbia Journal of Transnational Law, Vol. 52, 2014, Available at SSRN: https://ssrn.com/abstract=3023409

Charles N. Brower

The Iran-United States Claims Tribunal ( email )

Parkweg 13
2585 JH
The Hague
Netherlands

Sadie Blanchard (Contact Author)

Notre Dame Law School ( email )

Notre Dame, IN 46556-0780
United States

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