Complex Designers and Emergent Design: Reforming the Investment Treaty System

Anthea Roberts,Taylor St John

doi:10.1017/ajil.2021.57

Abstract

AbstractHow do actors undertake institutional design in complex systems? Scholars recognize that many international regimes are becoming increasingly complex. Yet relatively little is known about how actors design or redesign institutions amid this complexity. As participant-observers in the UN negotiations on investment treaty reform, we have watched state officials and other participants grapple with this question for several years. To help explain what we have observed, we conceptualize these participants as complex designers—actors who seek to design and redesign institutions within complex adaptive systems. We then formulate three emergent design principles that seem to guide their approach as they aim to create: flexible structures, balanced content, and adaptive management processes. In a dynamic era marked by unpredictability, division, and complex transnational challenges, we believe these concepts may prove to be increasingly relevant in global governance.

Highlights

How do actors undertake institutional design in complex systems? Scholars recognize that many international regimes are becoming increasingly complex.[1]
In a dynamic era marked by unpredictability, division, and complex transnational challenges, we believe these concepts may prove to be increasingly relevant in global governance
Time will tell if this sort of hub develops in or beyond UNCITRAL. It suggests that negotiators see their engagement with the system as one of ongoing adaptive management, rather than just episodic redesign. In this Article, we have argued that there is a logic and coherence underlying what we observe at UNCITRAL that can be illuminated by applying insights from complexity theory

Summary

INTRODUCTION

How do actors undertake institutional design in complex systems? Scholars recognize that many international regimes are becoming increasingly complex.[1]. To help explain and theorize what we have observed, we conceptualize these UNCITRAL participants as complex designers and formulate a series of emergent design principles that seem to guide their approach in the reform negotiations. Participants at UNCITRAL approach the investment treaty system as a complex adaptive system They see a system made up of many actors (states, investors, international organizations, law firms, NGOs) and structures (treaties, institutions, awards) that reflect diverse views and interact in myriad ways, often with unpredictable outcomes.[19]. The complex designers we see at UNCITRAL face unpredictability and ongoing change, but still aspire to design or redesign institutions that will deliver on their substantive goals over time In our observation, they function like landscape architects who focus on both episodic design and adaptive management. It finds its origin in CRAWFORD STANLEY HOLLING, ADAPTIVE ENVIRONMENTAL ASSESSMENT AND MANAGEMENT (Blackburn Press, 1978)

CONTEXT AND METHODS

Investment Law Literature

COMPLEXITY THEORY

COMPLEX DESIGNERS

EMERGENT DESIGN

CONCLUSION