Revisiting the Depoliticization of Investment Disputes

Yearbook on International Investment Law and Policy, 2010-11 (Oxford University Press), pp. 693-714, ISBN: 9780199812356

20 Pages Posted: 3 Mar 2019

See all articles by David Schneiderman

David Schneiderman

University of Toronto - Faculty of Law

Date Written: April 12, 2011

Abstract

The chapter challenges claims about depoliticization in two different aspects. The first examined claim is that home states are disenfranchised from pursuing investment claims once they are lodged with ICSID. Is it the case that home states simply stay home? This chapter examines instances where home states may have played a role in investment disputes between contracting states. What the record generally reveals, however, is that home states involve themselves in disputes where ICSID hearings are imminent but not yet in play. The second, broader, reading of depoliticization maintains that disputes now are resolved without recourse to lowly politics but to ‘higher’ law. This more extravagant claim is vulnerable to the critique that investor-state dispute resolution is not emptied of political content but, instead, spills over with politics. As the regime implicates the capacity of public authority to act in a wide variety of regulatory contexts, the separation of law from politics is hard to credibly maintain. Not only are investor-state disputes embedded within regimes of political discourse and political power, the ambit of investment arbitrator discretion is so capacious that it can be said of arbitrators, as it has been said of the U.S. Supreme Court, that they can sensibly be regarded as political actors.

Suggested Citation

Schneiderman, David, Revisiting the Depoliticization of Investment Disputes (April 12, 2011). Yearbook on International Investment Law and Policy, 2010-11 (Oxford University Press), pp. 693-714, ISBN: 9780199812356 , Available at SSRN: https://ssrn.com/abstract=3332966

David Schneiderman (Contact Author)

University of Toronto - Faculty of Law ( email )

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Toronto, Ontario M5S 2C5
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