Is Investor-State Arbitration Broken? The short answer is yes. The reasons are many.
A few years ago I went over some of these same issues in an article
discussing whether there was a level playing field in investor-state
arbitration. The conclusion was that there was a serious problem of the
perception of bias in the system, if not actual bias. Given the
developments since then in this burgeoning area of practice, this seemed
to be the right time to take another look to gauge how much has changed
and whether the change has been in the right direction.
This second look is not a statistical study. Although statistical
studies have been made, it is highly questionable whether any
statistical analysis could ever answer the question posed in this
article, at least not without undertaking the arduous task of analyzing
in depth the merits of hundreds of investor-state claims. It is my
personal experience and that of many of my colleagues, not statistics,
that leads me to say that what is needed, and what seems further away
now than ever, is a complete overhaul of investor-state arbitration, top
to bottom, beginning to end. The expression “biting the hand that feeds
you” may come to mind, but in the long run neither states nor the
international arbitration community benefits from sweeping these issues
under the rug.
Click here to download the full article: http://www.transnational-dispute-management.com/journal-advance-publication-article.asp?key=464
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