International investment arbitration remains one of the most controversial areas of globalisation and international law. This book provides a fresh contribution to the debate by adopting a thoroughly empirical approach. Based on new datasets and a range of quantitative, qualitative and computational methods, the contributors interrogate claims and counter-claims about the regime's legitimacy. The result is a nuanced picture about many of the critiques lodged against the regime, whether they be bias in arbitral decision-making, close relationships between law firms and arbitrators, absence of arbitral diversity, and excessive compensation. The book comes at a time when several national and international initiatives are under way to reform international investment arbitration. The authors discuss and analyse how the regime can be reformed and ow a process of legitimation might occur.
1. Introduction: The Legitimacy Crisis and the Empirical Turn, Daniel Behn, Ole Kristian Fauchald, Malcolm Langford; 2. The International Investment Regime and its Discontents Daniel Behn, Ole Kristian Fauchald, Malcolm Langford; Part I. Process Legitimacy: Independence and Impartiality. 3. Testing Cognitive Bias: Experimental Approaches and Investment Arbitration Sergio Puig, Anton Strezhnev; 4. The Influence of Law Firms in Investment Arbitration Runar Hilleren Lie; 5. Arbitrator Challenges in International Investment Tribunals Chiara Giorgetti; 6. Dissents in Investement Arbitration: On Collegiality and Individualism Daphna Kapeliuk; Part II. Process Legitimacy: Legal Reasoning. 7. Foreign Investors, Domestic Courts and Investment Treaty Arbitration Szilárd Gáspár-Szilágyi; 8. Ensuring Correctness or Promoting Consistency: Tracking Policy Priorities in Investment Arbitration through Large-scale Citation Analysis Wolfgang Alschner; 9. Fair and Equitible Treatment: Ordering Chaos through Precedent Florian Grisel, Meng Jia Yang; Part III. Output Legitimacy:10. The West and the Rest: Geographic Diversity and the Role of Arbitrator Nationality in Investment Arbitration Malcolm Langford, Daniel Behn, Maxim Usynin; 11. Mixing Methodologies in Empirically Investigating Investment Arbitration and Inbound Foreign Investment Shiro Armstrong, Luke Nottage; 12. Double Jeopardy? The Use of Investment Arbitration in Times of Crisis Cedric Dupont, Thomas Schultz, Merih Angin; 13. Who has Benefited Financially from Investment Treaty Arbitration? An Evaluation of the Size and Wealth of Claimants Gus Van Harten, Pavel Malysheuski; 14. Explaining China's Relative Absence from Investment Treaty Arbitration Fredrik Lindmark, Daniel Behn, Ole Kristian Fauchald; Part IV. Legitimation Strategies. 15. Does International Arbitration Enfeeble or Enhance Local Legal Institutions? Catherine Rogers, Christopher Drahozal; 16. Learning from Investment Treaty Law and Arbitration: Developing States and Power Inequalities Mavluda Sattorova, Oleksandra Vytiaganets; 17. Legitimation through Modification: Do States Seek More Regulatory Space in Their Investment Agreements? Tomer Broude, Yoram Haftel, Alex Thompson.
Daniel Behn is a Senior Lecturer in International Law at Queen Mary University of London and an Associate Research Professor at PluriCourts, University of Oslo. He is the Deputy Chair of the Academic Forum on ISDS Reform, leads the PluriCourts Investment Treaty and Arbitration Database (PITAD) project and is an Associate Editor at the Journal of World Investment and Trade. He was recently awarded the John H. Jackson Prize for Best Article in the Journal of International Economic Law. His primary research interests are in international adjudication generally and international arbitration specifically. Ole Kristian Fauchald is Professor at the Faculty of Law, University of Oslo and Research Professor at the Fridtjof Nansen Institute. His fields of research are international investment law, international and domestic environmental law, and international trade law. He has been guest researcher at Peking University during the academic year 2006–2007 and at the United Nations University for Peace, Costa Rica, during 2018–2019. Currently, he is coordinating research on investment tribunals at the PluriCourts Centre of Excellence on The Legitimate Roles of the Judiciary in the Global Order. Malcolm Langford is a Professor of Public Law, Director of the CELL Centre of Excellence for Education, and Co-Director of the Centre on Law and Social Transformation, Chr. Michelsen Institute and University of Bergen. He has been awarded the John H. Jackson Prize for Best Article in the Journal of International Economic Law and the European Society of International Law Young Scholar Prize for his paper on Managing Backlash: The Evolving Investment Treaty Arbitrator. Langford chairs the Academic Forum on Investor-State Dispute Settlement (ISDS) and is a co-editor of the Cambridge University Press book series Globalization and Human Rights. He is also an Associate Fellow at the PluriCourts Centre of Excellence at the University of Oslo.
