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Integrating Investment Treaty Conflict and Dispute Systems Design

70 Pages Posted: 12 Mar 2007 Last revised: 20 May 2009

Susan D. Franck

American University - Washington College of Law

Abstract

With the debate on the renewal of the Trade Promotion Authority Act, the proper terms of investment treaties - including dispute resolution provisions - have become an issue of public scrutiny. In a so-called litigation explosion, investors resolve disputes against host governments through international arbitration mechanisms in investment treaties; and there is little evidence of reliance on other processes like mediation. This escalation has lead to a teething period where parties and non-parties have expressed divergent views as to the efficacy, efficiency and fairness of the dispute resolution process. With billions of dollars and sovereignty at stake, the dispute resolution system is at a critical historical juncture. In an effort to examine the system's integrity, this article describes unexplored synergies between investment treaties and Dispute Systems Design. It considers how designing dispute resolution systems systematically can create more effective conflict management; it also assesses the costs and benefits of such an approach. The article suggests a new area of scholarship integrating Dispute Systems Design and investment treaties is necessary to determine how stakeholders can create dispute resolution mechanisms that maximize the satisfaction with and legitimacy of the process of resolving investment treaty conflict.

Keywords: Investment treaty arbitration, ICSID, BIT, foreign investment, mediation, ombuds, dispute resolution, conflict theory, dispute systems design, legitimacy, litigation explosion, investment treaty, IIA, investor-State

JEL Classification: C78, F02, F13, F21, F30, H77, H87, K33, K41, K20, O1, O2, D7

Suggested Citation

Franck, Susan D., Integrating Investment Treaty Conflict and Dispute Systems Design. Minnesota Law Review, Vol. 92, p. 161, 2007. Available at SSRN: https://ssrn.com/abstract=969252

Susan D. Franck (Contact Author)

American University - Washington College of Law ( email )

4300 Nebraska Avenue, NW
Washington, DC 20016
United States

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