Institutionalism and Fact-Finding in International Disputes

Abstract

Efforts to reform investor-state dispute settlement with an investment court promise to elevate the role of institutions in dispute resolution. The goal of this renewed campaign for institutionalism is to enhance both the legitimacy of arbitrators as individual decision-makers and the legitimacy of legal interpretation. But these reform efforts ignore another core aspect of legitimacy—the legitimacy of the fact-finding process. Ignoring this aspect of legitimacy is a significant oversight, as treaty authors, disputing parties, and practitioners all remain dissatisfied with fact-finding quality and with international law’s continued failure to address the factual complexity of today’s disputes. Both theory and experience with institutionalism in existing systems predict that an investment court—with a standing administrative apparatus, a standing first-instance tribunal, and a standing appellate mechanism—cannot address this dissatisfaction. At best, an investment court will have only marginal effects on fact-finding. At worst, it will become a potential source of unreliable fact-finding practices and serve only to increase the cost and length of the process. This Article cautions investment-court proponents to consider the aspect of legitimacy that they have missed and points them to an alternative, rules-based approach that would make changes to the evidentiary rules that govern the production, testing, and evaluation of evidence. A rules-based approach offers the opportunity to promote fact-finding practices that increase quality, to discourage practices that do not, and to support consistency and predictability—all without requiring wholesale reform or degrading efficiency. The Article concludes with two rules-based strategies: the establishment of analytical frameworks to increase adjudicator accountability and engagement with the factual record and the appointment of subject-matter experts as adjudicators to inject expertise directly into the decision-making process in factually complex disputes.