Chapter 8 examines how social hierarchies are reproduced through the operations of justice. It argues that justice institutions, whether national or supranational, are systematically characterised by restricted professional markets of repeat players (Galanter 1974) who act as gatekeepers of the relationship with justice users (individuals, corporations or states). The globalisation and financialisation of global value chains is reinforcing rather than weakening the post-Cold War competition between legal ordering claims. The contrasted development of justice institutions (from the US Supreme Court; asylum justice; interstate adjudication; investment arbitration to international criminal justice) demonstrates that it is fostering the global diffusion of the Wall Street model of the corporate law firm as an engine of legal globalisation and for the reproduction of legal and social hierarchies. This positions justice institutions as practical and symbolic boundary-making sites between capitalism’s so-called cores and its peripheries.

That a commercial contract is international may seem intuitive to some observers, yet it is difficult to find an accepted definition for the term. What is even more difficult is identifying the legal rules to which international commercial contracts are subject. Are international contracts subject to some sort of international law? What are the sources of this law and what is its scope of application? To the extent that international contracts are subject to national rules, which law’s rules are applicable? These questions become even more pressing when the practice of international contracting is taken into consideration: contracts are often written as if their terms were the only source with which to regulate the parties’ relationship and as if any sources of law were irrelevant.

The chapter discusses cybersecurity from the perspective of human rights protection. It first identifies adopting border measures as one approach to fulfilling a state’s duty to protect its citizens against human rights violations caused by cybercrimes. It then examines the tension between these FDI restrictive border measures and states’ investment protection and promotion obligations under IIAs. The analysis demonstrates a limitation in the current international law framework in which invoking the concept of national security remains the only means for states to address cyberthreats, which involves the risk of an accelerating shift to protectionism.

The chapter discusses arbitration’s function in the development of the substantive law applicable to the resolution of an arbitral dispute. In the context of commercial arbitration, this will frequently include national commercial law, as well as, to a restricted extent, non-national sources; while in investment arbitration, this will most commonly include international investment law – possibly in addition to the applicable national law. Undoubtedly, arbitration has also contributed to the development of the procedural law of arbitration through its practice; but this chapter only refers sporadically and occasionally to instances of procedural law development.

The influence of the EU and EU law on investment arbitration is one of the hotly debated topics in today’s arbitration world. Since the EU obtained the competence for the regulation of foreign (direct) investment on behalf of its Member States through the 2009 Lisbon Treaty, the European Commission’s efforts have brought about much change for both the EU’s internal and the EU’s external investment law relations. On the EU-internal level, the Commission – since 2018 backed by the European Court of Justice’s Achmea judgment and since early 2019 also by the EU Member States – has worked towards the elimination of investment arbitration. It seeks to have these disputes litigated before EU Member State courts instead. On the EU-external level, the Commission has successfully negotiated a new dispute settlement model in the EU’s free trade and investment agreements: an investment court system, the compatibility of which with EU law the Luxembourg court confirmed in 2019. This chapter seeks to set out these developments in a structured manner. It is necessarily incomplete, since the interaction between the Commission, investment tribunals, courts and other actors continues to develop – despite the fact that this interaction to a considerable degree remains determined by mutual ignorance.

This chapter does not provide an argument for or against the legitimacy of investment arbitration, but analyzes the discourse on legitimacy from a conceptual standpoint. Rather than offering an abstract analysis of different theoretical conceptions or concepts of legitimacy, it focuses on the concrete aspects addressed by different participants in the debate under the heading of legitimacy and the differences in underlying assumptions. It explains that because of similarities between investment arbitration and mechanisms of public law and governance, the legitimacy critique of investment arbitration in essence results from the observation of a mismatch between the private-law-inspired rationale of investment arbitration and the demands of principles of constitutional law that are generally used to assess the legitimacy of governance mechanisms. The chapter then turns to how states and policy-makers, arbitral tribunals, and scholarship can and in parts do react to the legitimacy critique of investment arbitration and how they aim at reestablishing legitimacy.

Over the last ten years, implicit consent has become one of the major points of contention in the debate about the propriety of class, mass and collective arbitration. The notion of implicit consent is critical to the development of large-scale arbitral proceedings because it allows multiple disputes to be heard at a single time, in a single forum, even if the relevant arbitration agreements are silent regarding the possibility of joint action by the claimants. The issue arises in the context of both international commercial arbitration and investment arbitration.

The divisive nature of the debate suggests that the controversy about implicit consent will continue so long as the discussion continues to be framed in its present terms. However, it may be possible to advance the conversation by expanding the nature of the analysis. Rather than focusing on implicit consent as a matter of treaty or contract interpretation, it might be beneficial to consider implicit consent from a systemic rather than individual perspective. This chapter therefore applies a dispute system design (DSD) analysis to the question of implicit consent. In particular, this discussion considers whether and to what extent the concept of ""regulatory litigation"" (defined herein as including both judicial and arbitral procedures) can be used to justify use of implicit consent as a means of addressing unanticipated risk, including unanticipated procedural risk.

The discussion proceeds as follows. First, Section II considers how regulatory litigation operates and why an analytical framework based on unanticipated risk might be necessary or useful in the context of large-scale arbitration. Section III then describes what constitutes unanticipated risk in disputes involving class, mass and collective injuries and how those issues affect dispute system design in international commercial and investment settings. Section IV addresses some of the criticisms of implicit consent and regulatory litigation by considering the nature of class, mass and collective claims, while Section V considers how implicit consent and regulatory litigation operate to overcome some of the special problems associated with transnational regulatory disputes. Section VI concludes the chapter with a number of forward-looking observations.

Coherence is a highly valued notion in law and it is especially sought after in investor-state dispute settlement. At the same time, coherence is a largely underexplored concept in international law literature. The introductory chapter serves to set the stage for the book’s investigation. To that end, the chapter outlines: (i) the impetus behind the choice of coherence as a subject for inquiry; (ii) the principal, so-called ‘bottom-up’ perspective from which the subject of coherence is examined in the book; and (iii) the core thesis advanced in relation to the dual, substantive and methodological, nature of coherence and its role in judicial reasoning in investor-state dispute settlement.

The next battleground involves the admissibility of sovereign bond claims in investment treaty arbitration, which emerges as a complicated issue particularly when a large group of bondholders bring a case as a bundle against the debtor sovereign. To attain an appropriate balance between bondholder protection and respect for orderly debt restructuring, this study has conceptualised investment arbitration proceedings as a supplemental leverage available for bondholders as a group by which a stay of arbitral proceedings is imposed and lifted amid the fair progress of sovereign debt restructuring processes.

The jurisdiction of arbitral tribunals to entertain sovereign bond disputes, which is primarily governed by the definition of investment as provided in applicable investment treaties, is the first stage at which such an appropriate balance is to be explored. This study has found that both the inclusion and exclusion of sovereign bonds as a protected investment reflect the policy decisions of contracting parties, and the ‘negotiated restructuring’ exception may embody a possible balance between bondholder protection and respect for negotiated debt restructuring. In the absence of an explicit reference to sovereign bond instruments, interpretative yardsticks, such as contribution, risk and territoriality as identified either in investment treaties or in the ICSID Convention may afford a balanced consideration taking into account of both the modern development of financial markets and policy decisions regarding the extent to which treaty protection should be provided.

International investment treaties accord foreign investors and their investments protection from unlawful encroachments by state authorities as well as violence by third parties. From the perspective of investors, this protection becomes especially relevant in times of armed conflict. For states, however, such times make the provision of this protection especially difficult. Arbitral proceedings in the aftermath of the so-called Arab Spring have laid bare unresolved issues and posed new challenges arising from the factual and legal implications of armed conflict. At the same time, international investment law is deeply rooted in issues of war and peace. Not only the first arbitration based on a modern bilateral investment treaty but also the historical precursors of international arbitration have touched upon armed violence and the treatment of aliens. This Introduction presents the themes of the book and provides an initial overview of the relevant legal framework and employed methodology.