Abstract
This essay suggests that amidst the various criticisms of investor-state arbitration, the most potent is the present inadequacy of this mechanism to establish a reciprocal responsibility of foreign investors. The founders of the modern era of international investment arbitration never intended to build a one-way street. In this sense, to seek a regime of investor responsibility may not be to reach toward a new frontier so much as to return to one that is familiar, though underexplored.
Highlights
This essay suggests that amidst the various criticisms of investor-state arbitration, the most potent is the present inadequacy of this mechanism to establish a reciprocal responsibility of foreign investors
While certain customary obligations comprising the origins of international investment law have a long and storied history in the law of nations, there is no denying that the drafters of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States in the mid-1960s reached boldly toward a new frontier
In relation to these concerns regarding the content of investment protection guarantees, that the international investment regime is structurally incapable of rendering consistent or coherent jurisprudence where decisions are made by unaccountable ad hoc tribunals detached from any constraint of binding precedent
Summary
This essay suggests that amidst the various criticisms of investor-state arbitration, the most potent is the present inadequacy of this mechanism to establish a reciprocal responsibility of foreign investors. The founders of the modern era of international investment arbitration never intended to build a one-way street. In this sense, to seek a regime of investor responsibility may not be to reach toward a new frontier so much as to return to one that is familiar, though underexplored
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