Shifting Perceptions of Legitimacy

Perceptions of the legitimacy of investment treaty arbitration have shifted radically in the last fifteen years. In 2003, in the early stages of the “baby boom” of investment treaty arbitration,Footnote ² all signs pointed toward an international consensus in favor of international arbitration, including for international investment disputes. An editorial note in the American Journal of International Law observed:

Today, it would be difficult to find any such consensus.Footnote ⁴ Instead, a new consensus appears to have emerged in recent years, at least among states: increased state control. All states appear to be seeking to exercise greater control over the international investment protection regime, albeit through different routes. States are seeking greater control over the development of international investment law, including by better defining certain key treaty protections. States are seeking to promote greater coherence in investor-state arbitration, including by expressly authorizing non-disputing-party submissions and binding treaty interpretations. They are narrowing the types of permissible claims and claimants, including by eliminating procedures and substantive protections deemed too broad or indeterminate. They are seeking to exercise greater control over the dispute-resolution process, by conditioning or limiting consent to arbitration, or even by eliminating investor-state arbitration entirely in favor of state-to-state arbitration or litigation before an international investment court. And they are expanding the ways in which they preserve authority and discretion to regulate, including by exempting from arbitration additional sectors or types of core government activities (such as tax or monetary policy) or taking additional reservations and exceptions to national and most-favored-nation treatment.

The Existing Ad Hoc, Decentralized, and Bilateral System

In evaluating these developments, it is useful to recall how the current system developed and evolved. To date, the international community has been unable to conclude a comprehensive treaty on international investment protection, such as the failed Organisation for Economic Co-operation and Development-sponsored Multilateral Agreement on Investment. Instead, the investment protection “system” has evolved piecemeal over decades through many sources and actors: espousal practice; customary international law; national investment laws; international investment contracts; UN practice; private efforts (including draft conventions, International Chamber of Commerce codes, International Bar Association guidelines, the writings of scholars, and so forth); many hundreds of awards and decisions by international tribunals; and of course thousands of treaties, mostly bilateral (friendship, commerce, and navigation treaties, bilateral investment treaties, and free trade agreements), as well as some important but narrow multilateral treaties, such as the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States and the New York Convention.Footnote ⁵

The resulting framework is ad hoc, decentralized, and largely bilateral.Footnote ⁶ The system's bilateralism (or, increasingly, regionalism) has been perceived as a key strength. It thus has been argued:

The current investment arbitration system may be considered a dynamic laboratory. For some, its success can be measured by the number of international investment agreements concluded by states from all parts of the world and at all levels of economic development, as well as the number of cases brought and successfully adjudicated.Footnote ⁸ But the current ad hoc, decentralized, bilateral system of investment protection also has created significant challenges for states. Puig and Shaffer highlight the many criticisms of the existing system: indeterminacy; inconsistency; insufficient transparency; treaty-shopping; conflicts of interest; and so on. But states face at least three additional important challenges, the responses to which could have enormous consequences for institutional choice and the reform of international investment law.

Three Challenges with the Existing System

The first challenge concerns reciprocity. Unlike traditional international dispute resolution, international investment disputes generally are not between two states, but between a state and a private party. This difference matters. States are repeat players in international adjudication, acting as claimants and respondents. States understand that the arguments they advance can later be made against them or their investors. As a result, states are—or at least should be—constrained in the arguments they advance in international adjudication. Private parties are different. They generally are not repeat players in international adjudication and typically act only as claimants in investment treaty disputes. As Vaughan Lowe has observed, private parties have every reason to pitch their claims at the highest levels, because they have no fear that their words will be used against them later.Footnote ⁹ The legal arguments they advance, therefore, can distort the sound development of international law through their influence on international investment awards.Footnote ¹⁰

The second challenge concerns opposability. There are now hundreds of publicly available investment arbitration awards. Most of these awards are not directly opposable to any particular state, but they may be cited against that state in its investment disputes. As Daniel Bethlehem asks, in a related context:

This is one of the central challenges in investment arbitration today. Formally, arbitration decisions are not binding precedent. Yet they are routinely cited as persuasive authority, including against states that were not party to the dispute and that had no role in the underlying case. Thus, every state potentially has an interest in every investment arbitration award, including in the tribunal's interpretation of international law, and every state arguably has a commensurate interest in proactively shaping the development of international investment law through international adjudication.

Arbitrating parties, including respondent states, primarily seek to shape the law though their pleadings—opining on the relevance, correctness, and persuasiveness of arbitral decisions and awards. This “is an efficient [way] for a party in a judicial process to show what it believes to be the law.”Footnote ¹²

States also may seek to shape arbitral precedent as non-disputing treaty parties. In principle, states have at least four avenues for doing so:

1. 1. States may make non-disputing-party submissions to arbitral tribunals;Footnote ¹³

2. 2. States may make official statements on international investment decisions and awards, including in cases in which they were not the respondent state;Footnote ¹⁴

3. 3. States may issue joint interpretations of their international investment agreements;Footnote ¹⁵ and

4. 4. States may intervene in annulment or set-aside proceedings.Footnote ¹⁶

Each of these mechanisms allows courts and tribunals to hear the views of all treaty parties, not just the views of the claimant and respondent state.Footnote ¹⁷ States also may publish their pleadings and non-disputing-party submissions, allowing others to build on that practice, and thus potentially influence the development of the law through cases in which the state is not a respondent or a non-disputing treaty party. This process should lead to better arbitral decision-making and provide greater clarity and predictability for investors and states alike. The tools available to states within the arbitration process complement those available to states outside of it, including treaty-making.

For many states, opposability is a challenge because the various mechanisms for controlling the development of arbitral precedent are perhaps more theoretical than real, as these states currently do not have the capacity to engage effectively as non-disputing parties. But because cases will continue to be decided under existing treaties for many years, it is imperative that states understand and utilize all of the tools currently at their disposal.

The third challenge concerns institutionalization. The decentralized investment treaty system lacks an intergovernmental organization mandated—and adequately funded—to provide the institutional support, training, and capacity-building that many states require to engage effectively in avoiding, mitigating, and managing international investment disputes. In practice, many states lack a dedicated office for responding to international investment disputes. Responsibilities, authorities, and funding for cases tend to be sorted out (if at all) only after investment disputes have been brought. Many states lack a proper understanding of their investment treaty commitments, and thus cannot easily avoid or settle disputes. They often lack significant expertise in international investment arbitration, and thus cannot defend themselves effectively and efficiently. And they often fail to obtain significant practical experience litigating investment disputes, and thus cannot properly revise their treaties with the benefit of that experience. For some, a feedback loop of incomprehension, inexperience, and incapacity has bred discontent with the current decentralized system.

To Puig and Shaffer, the answer to such challenges rests in complementarity. Establishing national courts as “first-line actors” for resolving international investment disputes, they argue, could help build the “domestic rule of law dynamically over time.”Footnote ¹⁸ Many states, including the United States, already encourage resort to domestic courts prior to the commencement of international investment arbitration,Footnote ¹⁹ while generally resisting any requirement to exhaust local remedies.Footnote ²⁰ Many more states are following suit.Footnote ²¹ It remains to be seen whether such efforts, if widely adopted, will reduce the number of investment treaty arbitrations over time.

Capacity as Legitimacy

In the meantime, many states still need to take concrete steps to build capacity within their governments to better cope with today's dynamic international investment arbitration system. Not every state, of course, will want or need to develop in-house capacity to represent itself. But every state active in investment arbitration needs to take steps to closely monitor investment disputes; to participate actively as a respondent state; to intervene where appropriate as a non-disputing party; and to adapt its investment treaty negotiations to reflect fast-changing developments in international arbitration.Footnote ²²

Seen in this light, the biggest challenge (and opportunity) today in international investment arbitration is perhaps at the domestic level. The legitimacy (and utility) of the system rests in part upon states’ ability to understand and comply with their legal obligations, effectively defend against investor claims, and keep the law on a sensible track. Capacity thus is an integral part of the legitimacy and viability of international investment arbitration. We should welcome, and encourage, reform efforts that help states build the capacity required to achieve these goals.