Third World Perspectives on International Economic Governance: A Theoretical Elucidation of the ‘Regime Bias’ Model in Investor-State Arbitration and its Negative Impact on the Economies of Third World States

Abstract

Mainstream scholarship argues that investor-State arbitration lies at the cutting edge of international law and dispute resolution and promises to play an increasingly important role in the development of the global economic system. However, from a TWAIL perspective and an underlying theme of this paper is that investor-state arbitration as a dispute settlement mechanism, in its modern context reflects a colonial and post-colonial attitude of Western exploitation of the Third World as elucidated by the notion of regime bias. Regime bias from a Third World perception, involves the manner in which rules of international trade, commerce and investment are crafted applied and adjudicated between Third World and developed countries, or between Third World countries and the interest of international capital. It therefore refers to an examination of the choices made between alternative ways of crafting legal rules, the meaning ascribed to a particular rule in its application by an administrative agency or at the adjudication stage by a domestic judicial body or an international tribunal. The regime bias approach, as a Third World perspective to international economic governance, has been compared to the national economic control (NEC) approach and the new international economic order (NIEO) approach, however in contrast to these other approaches which offer external critiques of, or alternatives to, international rules; the regime bias model is able to illustrate how rules of the international trading regime dis-empower some of the most vulnerable members of the international trading community inconsistently with its liberal promises of fairness. Thus this paper aims to illuminate the theory of regime bias, highlighting that international dispute resolution involving Third World States often embody biases that are disadvantageous to these new States. In the realm of international economic law, international trade and investment disputes are settled in ways that seek to promote the Western economies, and the underlying global economic system, which they dominate. For example, in the area of international investments, which form the bulk of Western engagements with the Third World, international arbitration which has come to be the most “viable”, “neutral”, and “speedy” dispute settlement mechanism; and, whose rise coincides with the decolonization era, has become a subject of intense suspicion, scrutiny and vehement disapproval by Third World States.