To invert the slogan from the 1980s movie Field of Dreams, just because you build it, does not mean they will come. The twentieth century is full of examples of ambitious international courts that were dreamed up, built, but then never utilized. Duke University political scientist Suzanne Katzenstein recounts stillborn proposals such as the 1907 Court of Arbitral Justice, the 1920 Criminal Court and the 1949 Human Rights Court (Katzenstein 2014). In each case, enterprising legal scholars and practitioners identified a theoretical need for international dispute resolution. But due to a lack of uptake by states and non- state actors, none of these forums ever got off the ground.

One example from the period shows why an enthusiasm gap emerged. In 1908, Pedro Diaz of Nicaragua challenged the government of Guatemala in the Central American Court of Justice over unjust imprisonment. By a 3- to- 2 vote, the judges on this then- novel panel voted against admitting his claim. Their argument: the treaty establishing the court required Diaz to go first through national courts. The doctor for his part claimed that he was unlikely to get justice from the state that had imprisoned him in the first place. After that, not many cases by individuals were brought to this particular court, none were successful and the forum disbanded a few years later (Hudson 1932).

International investment arbitration could have faced a similar challenge.