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Recent international arbitration cases, especially P&ID v Nigeria , have highlighted how easy it is for claimants—whether in treaty-based Investor–State Dispute Settlement or commercial arbitration—to advance immense claims grounded on essentially no evidence against state respondents. This largely reflects the readiness of many quantum experts to engage in the practice which Martin Wachs called 'lying with numbers' in order to misrepresent the execution risks of speculative unbuilt projects in a manner that is radically at odds with empirical data regarding such execution risks, which is exacerbated by the ignorance of many arbitrators about business economics and discounted cash flow valuation. This situation is unlikely to improve, and overall standards of candour in valuation in international arbitration will keep going down as the system will keep rewarding the act of cloaking advocacy in the guise of scientific or technical rationality in order to 'lie with numbers'. [ABSTRACT FROM AUTHOR]

This article argues that specific mechanisms and best practices should be adopted by different players in the Belt and Road Initiative (BRI) dispute resolution ecosystem to mitigate the risks of multiple proceedings and abuse of procedure. Specifically, (i) states should enhance their multilateral and bilateral treaty practices; (ii) arbitral institutions should enhance their arbitral rules as well as cooperate with each other; and (iii) states should direct more efforts to dispute prevention and amicable dispute settlement. This article will explain what these best practices and mechanisms are. The 'The BRI' section will provide a general background on the nature and architecture of the BRI. The 'Problem of multiple proceedings and abuse of procedure' section will discuss the notion of multiple proceedings and abuse of procedure. The 'Potential of multiple, parallel proceedings and abuse of procedure on BRI projects' section will focus on possible multiple proceedings and abuse of procedure on BRI disputes. The 'Possible solutions and recommendations' section will identify possible solutions and provide recommendations. Conclusions section will draw final conclusions. [ABSTRACT FROM AUTHOR]

The lack of diversity in the appointment of tribunal members in investment arbitration has long been subject to criticism. This article analyses the design of adjudicator appointment mechanisms and challenges the mainstream view that investment arbitration is modelled after the structures and procedures of commercial arbitration. Instead, drafters of the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (ICSID Convention) largely drew inspiration from the Permanent Court of Arbitration and the International Court of Justice. Following this institutional pedigree, the development of the equitable representation requirement is linked to the growing appreciation of the public aspects of the international judicial function. Nevertheless, drafters adopted Article 14(2) of the ICSID Convention mainly to facilitate the performance of the private function of dispute resolution. Through the historical lens, controversies surrounding different approaches for addressing diversity concerns in the ongoing investor–State dispute settlement reform are essentially surface products of deeper disagreements on the private and public aspects of the judicial function. [ABSTRACT FROM AUTHOR]

This article suggests that the arbitral use of jus cogens and erga omnes is slowly producing a 'presumption of applicability' in investor–state arbitration tribunals tasked with determining whether international law applies to investors. Looking backward from two recent counterclaims at tribunals established under investor–state dispute settlement (ISDS) clauses in international investment agreements that support our claim, the article first analyses the evolution and use of jus cogens in attaching rights-claims to non-State subjects of international law. Secondly, it explores the origins and uses of obligations erga omnes in attaching obligations-claims to non-State subjects of international law. It attempts to define the contours of jus cogens and erga omnes as they are deployed in recent ISDS case law and highlights the limits of each concept. The article concludes that there is a potential for a presumption of applicability in international investment arbitration for investor obligations and that this presumption can be sourced from general international law. [ABSTRACT FROM AUTHOR]

Blockchain dispute resolution has led the crypto economy to the surge of a new form of dispute resolution: blockchain arbitration. Resolving disputes on-chain is becoming necessary as national and international legal frameworks are not adapted to the characteristics of blockchain transactions. More importantly, the legality of smart contracts is highly debated under various national laws. This new sui generis form of arbitration should not be assimilated with traditional arbitration. Indeed, blockchain arbitration might not fit within the traditional international arbitration framework, and it does not have to. Because blockchain arbitration operates as an oracle, the decision from the jurors automatically triggers or modifies the smart contract. Through the blockchain technology, arbitration has reached the possibility to automatically enforce arbitral awards with no need to rely on state courts' authority. Observing the legal theories of international arbitration, blockchain arbitration enshrines the representation of delocalized arbitration, but simultaneously leaves room for a new representation of arbitration: decentralized arbitration. In the next decades, we will see the surge of the blockchain arbitral order, an independent legal order anchored in the Lex Cryptographia. This essay advocates for the recognition of the blockchain arbitral legal order and tries to draw its contours. [ABSTRACT FROM AUTHOR]

This article examines the potential for beneficial procedural cross-fertilization between internationalcommercial and investment arbitration from a functional perspective. The article argues that botharbitration regimes share a 'private' dispute resolution function of resolving specific disputes, butonly investment arbitral tribunals also exercise a 'public' law-making function of developing the lawapplicable to the resolution of disputes. The article considers two recent procedural developmentsin international arbitration rulesjoinder of third parties and publication of arbitral awardsin thelight of these private and public functions. It argues that joinder, as an efficiency-enhancingmeasure, can lead to beneficial cross-fertilization between commercial and investment arbitrationbecause it reinforces the 'private' dispute resolution function shared by both regimes. In contrast,the default publication of arbitral awards, to the extent that it is intended to be systematic and createinformal precedent, is appropriate in investment but not in commercial arbitration because onlyinvestment arbitral tribunals exercise a 'public' law-making function that justifies and stands tobenefit from this practice. In this regard, the article rejects three rationales for default publication ofinternational commercial arbitral awards: improving consistency/predictability, enhancingtransparency and developing transnational commercial law. The article concludes that crossfertilizationbetween investment and commercial arbitration can be valuable so long as it concernstheir shared private dispute resolution function. However, attempting to develop internationalcommercial arbitral practice in the shadow of the public law-making function of investment arbitraltribunals may result in counterproductive practices and undermine the proper functioning ofinternational commercial arbitration as a whole. [ABSTRACT FROM AUTHOR]

In the midst of a global pandemic, whose economic consequences are still unfolding, cross-border insolvencies loom closer. Besides the ripple effect cross-border insolvency cases might have on the economy, another cause of concern lies in the complexity of resolving such cases. Against this backdrop, this contribution posits that international arbitration may facilitate the resolution of some of the cross-border insolvency-related disputes as long as certain safeguards are put in place. Consequently, the perceived advantages of international arbitration may ease the already intricate cross-border insolvency proceedings, relieving insolvency courts around the world. [ABSTRACT FROM AUTHOR]

The domain of international investment law is evolving. Today, an increasing number of treaty claims filed against states are based on allegations of a breach of contract. Investment treaty tribunals also tend to affirm jurisdiction over such claims, routinely ignoring that the underlying contract may contain an arbitration agreement in favour of commercial arbitration. This tendency creates a potential jurisdictional conflict between a commercial and investment treaty arbitration proceeding; ripe for investors to exploit. In this context, this article explores the different ways in which investment treaty tribunals have created this jurisdictional conflict. On such basis, it assesses the ameliorative potential of the principle of lis pendens in international arbitration, and whether this potential can be realized in a timely manner. [ABSTRACT FROM AUTHOR]

While Islamic finance is premised on wholly antithetical rules and notions as opposed to traditional Western finance, the resolution of pertinent disputes has been structured along the lines of standard commercial arbitration. Islam has always favoured arbitration and mediation and in fact promoted these in very much liberal terms. As a result, there has never been a need to adapt a sui generis Islamic dimension to Islamic finance, because clearly Western and Islamic notions of arbitration largely coincide. In recent years there have been some attempts to limit Islamic finance arbitration within a narrow understanding of Islamic ethics, despite the fact that it has become transnational in character and Islamic ethics are in any event inbuilt in the architecture of Islamic finance instruments, which arbitrators can only avoid at their peril. It is no wonder that Muslim end users generally prefer to resolve disputes arising from Islamic finance transactions in conventional arbitral institutions, while at the same time choosing English law to govern their agreement, typically concurrently with Islamic law or other laws. As a result, Islamic finance has equally attracted non-Muslim end users. The English High Court has not only developed a particular expertise in Islamic finance law but has, in addition, demonstrated how Islamic and secular law are generally compatible and complementary (with some notable exceptions) in construing transnational Islamic finance. At the same time, institutions and rules in the Muslim world that depart from the global arbitration paradigm are fast falling into desuetude. In light of these findings, it is argued that a sui generis Islamic finance arbitration model is not only disfavoured by end users as being out of touch with business reality but is inconsistent with the fundamental tenets of the Islamic law of arbitration. [ABSTRACT FROM AUTHOR]

After a dispute between India and Pakistan broke out concerning overflight rights, the International Civil Aviation Organisation (ICAO) Secretariat reviewed 204 bilateral aeronautical agreements between 1941 and 1951 and listed them according to the categories of dispute resolution clauses that they contained. Around 68 years have passed and the ICAO Council has exercised its dispute settlement power in multiple occasions. This article builds upon the research carried out by the ICAO Secretariat, which it supplements with up-to-date data of 709 agreements. It then provides a typology, a study of different types, of bilateral air services agreements (ASAs). The article concludes that the use of international arbitration is the primary forum for dispute resolution chosen by drafters of bilateral ASAs. However, a look at the cases brought to ad hoc arbitration reveals deficiencies, which leads us to discuss potential institutionalized reforms. [ABSTRACT FROM AUTHOR]

Document production, and with it e-discovery, presents unique opportunities but also challenges for parties and tribunals seeking fair, efficient and effective investor-state arbitration proceedings. Despite the prevalence of electronically stored information and the potential utility of technology-assisted review techniques, e-discovery procedures in investor-state arbitration are relatively underdeveloped. Applicable procedural rules and guidelines are largely silent as to the mechanics of e-discovery. Analysis of investor-state arbitration decisions indicates a further reticence on the part of parties and investor-state tribunals to squarely address issues of e-discovery proactively. This means that the use, selection and scope of e-discovery are left almost entirely to parties and tribunals to navigate on a case-by-case and largely ad hoc basis. Given the likely increasing relevance of e-discovery in international investor-state arbitration, this article considers how parties and tribunals might be supported to become better equipped to accommodate e-discovery appropriately in investor-state arbitration. [ABSTRACT FROM AUTHOR]

From the original 1985 version to its amended 2006 version, and from the year-2006 to the present, critical remarks on the Model Law have never taken a pause. It is a constant subject of evaluation and evolution that reflects in the interpretations of national courts of various jurisdictions, which often reveal challenging flaws in the outworking of the Model Law. This article delves into such lurking challenges that leave a pervasive effect on Model Law's outworking and are yet not very conspicuous. [ABSTRACT FROM AUTHOR]

The establishments of international commercial courts reflect the closer alignment of commercial transactions and the development of dispute resolution mechanisms. To mainly facilitate the developments of the 'Belt and Road Initiative', China established the China international commercial court (CICC) in 2018. It marked a significant step in the development of China's judicial system. However, compared with other international commercial courts in the world, the construction of the CICC still has much room for improvement in the areas of jurisdiction, internationalization, and the recognition and enforcement of judgments. The China's Supreme People's Court (SPC) needs to consider how to refine the working procedures, enhance the internationalization, and promote the recognition and enforcement of the awards by the CICC. The SPC may need to update the current legal regime for the CICC based on the operation and the experience of trials. In addition to the efforts of the SPC to pave the way for developments, China needs to consider modifying the relevant rules and actively expand its judicial cooperation with other countries. [ABSTRACT FROM AUTHOR]

This article analyses Nori Holdings v Bank Otkritie [2018] EWHC 1343 (Comm)—the only English decision hitherto holding that EU law's prohibition on anti-suit injunctions based on arbitration agreements established in Allianz v West Tankers survives the Brussels Regulation (recast). We argue that Males J's rejection of AG Wathelet's hypothesis in his Gazprom opinion to the effect that the Regulation (recast) has overruled West Tankers is largely persuasive. At the same time, we also identify two problematic aspects of the judgment. Namely, we contend that the High Court was arguably wrong (i) to interpret AG Wathelet as envisaging that a case would 'move in and out' of the Regulation and (ii) to interpret Gazprom as holding that Member State courts are permitted to enforce all arbitral 'anti-suit' awards, including those enjoining a party from litigating in another EU Member State. [ABSTRACT FROM AUTHOR]

Balancing arbitration autonomy and sovereignty supervision is the essential rhythm of international arbitration development. Influenced by the international trend of relaxing national judicial supervision, the Chinese judicial system, led by the Chinese Supreme People's Court (SPC), has promoted a series of judicial reforms to coordinate domestic arbitration and international practice. This article elaborates the SPC's recent reforms of the Chinese mechanisms of arbitration judicial supervision. The article first explores the international trend of the restraint of the national judicial supervision of arbitration. Then, the article introduces how such a trend impacts China's recent reforms of its arbitration judicial supervision. By focusing on the rules established by the SPC regarding the judicial review of both international and domestic arbitral awards, this article exposes the essential factors and corresponding solutions that hinder the efficiency of the judicial supervision of Chinese arbitration. [ABSTRACT FROM AUTHOR]

International investment tribunals have increasingly been confronted with allegations of corruption. This includes investors alleging corrupt conduct by public officials as the basis for a claim, and host States alleging corruption between an investor and host State public officials as a defence. In these contexts, a question arises as to the responsibility of the host State for the corrupt conduct of its public officials. Tribunals have thus far shown a general reluctance to hold a host State internationally responsible in these circumstances. This article argues that such an approach is not consistent with principles of State responsibility. Instead, the article proposes an approach based on the ILC Articles on State Responsibility that considers, inter alia, the investor's conduct, the host State's conduct and the ostensible capacity in which the corrupt public official has acted. The article also considers the consequences of a host State's international responsibility for corruption, including the host State's ability to invoke that same corruption as a defence. [ABSTRACT FROM AUTHOR]

This article does not set out to describe how experts are being used or should be used in international adjudication. Rather, it sets out to delimit the role of an expert conceptually, by distinguishing it from the functions of other actors, such as adjudicator, counsel and witness. Once this is done, most of the ‘problems’ associated with the role of experts in litigation are resolved. The role of experts is thus revealed to be one of guiding, translating, organizing and contextualizing. All that remains is for other actors, and notably the adjudicator and opposing counsel, to identify the additional functions that experts tend to arrogate to themselves, and respond accordingly. [ABSTRACT FROM AUTHOR]

This article, written from the perspective of an accountant with broad experience as an expert witness, discusses the relative merits of the perceived adversarial nature of expert evidence. The article first identifies some advantages and disadvantages of the process whereby two expert witnesses can be perceived to take up positions seen by the tribunal as polar opposites. This article then provides commentary on some of the common ways in which expert evidence is presently communicated to a tribunal. The concluding commentary is that more thought could be given before an expert takes a position that serves the tribunal, but only somewhat as an afterthought—but whose principal target audience can be the opposing expert witness. [ABSTRACT FROM AUTHOR]

The proliferation of interstate alternative dispute resolution (ADR) mechanisms, such as joint tax vetoes and mutual agreement procedures, as well as investor-state taxrelated arbitration are the chief reasons for the decline of interstate arbitration (or other forms of adjudication) in tax matters. The article argues that interstate arbitration is envisaged, apart from energy pipeline agreements, as a residual dispute settlement mechanism, but the relative success of ADR has limited interstate arbitration to a limited set of contexts and cases. The following instruments typically serve as submission agreements, namely: bilateral investment treaties, bilateral tax treaties, multilateral regional economic cooperation (or free trade) agreements and pipeline treaties. Ultimately, as the article concludes, a hybrid system that combines: (i) the direct involvement of the taxpayer; (ii) the efficiency of institutional arbitration; and (iii) the transparency guarantees of interstate arbitration is perhaps the way forward. [ABSTRACT FROM AUTHOR]

On 12 July 2016, the arbitral tribunal constituted under Annex VII of the United Nations (UN) Convention on the Law of the Sea (UNCLOS) issued its award in the South China Sea Arbitration between the Philippines and China. According to Article 11 of Annex VII, the award of the arbitral tribunal shall be 'final'. The provision reiterates the general statement in Article 296(1) UNCLOS that any decision rendered by a court or tribunal having jurisdiction under part XV, section 2, of UNCLOS shall be 'final'. In its award, the tribunal decided a number of general questions of the law of the sea, including the meaning of the term 'rocks' in and the relationship between UNCLOS and customary international law. This article examines what 'finality' of an arbitral award means with regard to decisions on such general questions of law or, in other words, in what way such decisions can be considered 'final'. [ABSTRACT FROM AUTHOR]

Identity of claims is a highly technical concept determining the scope of coordination and preclusion in domestic adjudication. It has also a deeper meaning. By limiting possibilities or repetitive and parallel litigation concerning the same conduct, it guarantees coherence in many mature legal systems. Investment arbitration rejects the integrationist potential of this notion and follows a path marked by systemic biases. This article examines the potential that the identity of claims may have for restoring unity of the fragmented legal system. A way forward may consist in realizing that other mechanisms pursuing different institutional agendas are equally capable of delivering justice. By extending the notion of the same claim adopted in private adjudication to international proceedings international law may follow an emerging social reality in which States and private investors are equal participants. [ABSTRACT FROM AUTHOR]

Site visits by the bench occur rarely in inter-state adjudication and arbitration. Against this backdrop, the recent site visits in Indus Waters Kishenganga Arbitration (Pakistan v India) and Bay of Bengal Maritime Boundary Arbitration (Bangladesh v India) are noteworthy and raise questions about how on-site inspections influence the decisionmaking process and whether site visits are an underused fact-finding tool. An analysis of these site visits, as well as past examples of site visits by arbitral tribunals and the International Court of Justice, reveal that the utility and value of site visits by the bench is difficult to ascertain, and there is little evidence that site visits have played a dispositive role. Moreover, in many disputes, other fact-finding methods may be more suitable than a site visit. But if site visits do, in fact, play a significant role in decision-making, then adjudicators should acknowledge that influence in a more transparent manner. [ABSTRACT FROM AUTHOR]

As well as multiplying, climate change disputes will, going forward, be multifarious and extend beyond the inter-State paradigm into the investor-State and citizen-State contexts. Leaving the now short-lived Kyoto Protocol aside, the current climate change legal framework--ie the United Nations Framework Convention on Climate Change and the Paris Agreement on Climate Change--is bereft of a binding, coercive compliance system. This void contrasts sharply with the punitive compliance system of the successful Montreal Protocol on the ozone layer. It is also exacerbated by the fact that the next best solution--a dispute settlement mechanism allowing the parties to ensure compliance among themselves through legal action--lacks one of the most effective strings to its bow: the arbitration annex provided for in the legal framework but never implemented. The drafting and bringing into force of this annex are vital to give the climate change legal framework the teeth it needs to meet the goals set in Paris, and to resolve climate change disputes more generally. To have the greatest impact possible, the annex should be moulded to take account of the myriad types of climate change disputes that increasingly have to be resolved. [ABSTRACT FROM AUTHOR]

The article explores the phenomenon of stateless justice. It proceeds as follows. After an introduction, Section 2 clarifies the relevant meaning of the word 'justice'. Section 3 describes the emergence of stateless justice, using Bitcoin as a case study. Section 4 clarifies that the notion of stateless justice does not encompass international arbitration. Sections 5, 6 and 7 address the three challenges posed by stateless justice. Finally, Section 8 of the article proposes a new interpretative model for a better understanding of justice, beyond the theoretical framework of state-centrism. [ABSTRACT FROM AUTHOR]

The article looks at the protection of investment during armed conflicts from the perspective of the law of treaties. It assesses the impact that an armed conflict has on international investment agreements (IIAs) and evaluates whether the emergence and continuation of an armed conflict affects the operation of an investment treaty such that the treaty can be unilaterally terminated or suspended. The article thus critically examines the much-understudied Draft Articles on the Effects of Armed Conflicts on Treaties on the case study of IIAs. It argues that it may be possible to lawfully suspend some of IIAs’ provisions once an extensive armed conflict emerges. Although this option might be limited, the article presents arguments why such a course of action might be legally preferable over other alternatives, such as relying on the circumstances precluding wrongfulness from the law of state responsibility. [ABSTRACT FROM PUBLISHER]

Arbitral tribunals and state courts are currently called upon to coexist in the European Judicial Space without being clearly coordinated with each other. The author wonders whether Regulation (EU) No 1215/2012, irrespective of restating the arbitration exclusion, brings a novelty in this regard by way of Recital 12—which sets out the arbitration exclusion’s scope—and Article 73(2)—which safeguards the 1958 New York Convention. Certain well known issues concerning the interface between Brussels I and arbitration—such as the risk of conflicting decisions either on the merits or on the arbitration agreement, the defence against derailing or delaying tactics flouting an arbitration agreement, the enforcement of anti-suit injunctions or judgments awarding damages for breach of the obligation to arbitrate—have been reviewed so as to appreciate whether and to what extent things have really changed. [ABSTRACT FROM PUBLISHER]

This article considers the role of arbitrators in adjudicating the merits of international commercial disputes. It focuses, as a case study within this broader topic, on the interpretation of contracts. Interpreting contracts is a highly practical activity, but arbitrators’ approach to interpretation has important implications both for theory and for the success of arbitration as a means for the resolution of international commercial disputes. Are arbitrators more like judges, bound to apply the governing law according to strictly defined rules, or more like commercially minded problem-solvers? What approach best serves the needs of commercial parties? The article challenges a widespread attitude that arbitrators should interpret contracts according to their commercially reasonable meaning, regardless of the interpretative rules provided in the governing law. First, it documents this attitude in the published awards and in the ‘extra-judicial’ pronouncements of arbitrators. Second, it confronts the various arguments that might be made in favour of arbitrators departing from the governing law. Finally, it sets out a suggested approach for determining the appropriate interpretive method in any given case. [ABSTRACT FROM PUBLISHER]

Many bilateral investment treaties include provisions to the effect that investors must comply with host state law. These clauses provide an important mechanism for host states to ‘defend’ themselves against investment treaty claims: tribunals have, in some cases, rejected jurisdiction over claims where investors have failed to comply with host state law. However, some tribunals have proposed limitations on the extent of host state law with which investors must comply. Other tribunals have accepted investors’ arguments that the state is estopped from denying the investor’s compliance with host state law, due to representations made by the state. This article questions these limitations both doctrinally and normatively. It finds no support for proposed limitations that investors must only comply with the ‘fundamental principles' of host state law, or must only comply with laws related to investment and not other laws. The article also finds that estoppel arguments are held in some tension with the professed commitment of investment treaties to respect for objective legality. Further, estoppel arguments are limited, in that they cannot be taken to apply in cases of corruption or fraud, nor (potentially) in cases of breach of fundamental host state laws. The article therefore seeks to restore the 'defence' of investor illegality in favour of host states, providing a tool to rebalance the investor-state relationship. [ABSTRACT FROM PUBLISHER]

As a result of the sovereign debt crisis that engulfed Europe in 2010, investors are much more likely to pursue dispute resolution options when faced with losses. This article seeks to examine the position of investors who suffered losses in the Greek haircut of 2012 in the context of investment treaty arbitration. The article evaluates arguments that investments in Greek sovereign bonds have been expropriated by the introduction of retrofit Collective Action Clauses (CACs) and that compensation is payable as a result of the protections offered by Bilateral Investment Treaties (BITs). The article investigates whether sovereign bonds come within the definition of protected investment in BITs, assesses the degree to which CACs act as a jurisdictional bar to investor-state claims and attempts an evaluation of whether claims could be successful. The analysis uses as an illustration a recent case brought against Greece at ICSID. The article concludes by considering whether the Greek haircut was expropriatory and reflects on the possible outcome of current arbitrations. [ABSTRACT FROM PUBLISHER]

In 2007, the government of Venezuela decided to re-structure certain oil projects, known as Associations, so as to bring them in line with the 2001 Hydrocarbons Law. In response, ExxonMobil and ConocoPhillips decided to exit Venezuela. Supposedly motivated by a commitment to uphold the principle of sanctity of contract, the companies subsequently initiated a series of arbitrations involving some of the largest claims ever put before international tribunals. However, the bargains that the companies insist they are defending are not reflected in the agreements that they had actually signed. Thus, these arbitrations amount to an attempt on the part of these companies to use international arbitral tribunals to re-draft on their behalf the contracts they had negotiated, so as to secure a windfall (which they had never bargained for) upon their exit from Venezuela. [ABSTRACT FROM PUBLISHER]

This article critically analyses arbitrator appointment in institutionally administered international commercial arbitration, by using Cotterrell’s ‘Law and Community’ socio-legal method to examine the power of party autonomy in the appointment of international arbitrators. The analysis considers the implications of this power being passed from international commercial arbitration user parties, to arbitral institutions (alongside proposals for centralized arbitrator information) as a solution to perceived problems of arbitrator bias and lack of diversity. Scrutiny of international arbitration scholarship, empirical research and the salient rules of four leading arbitral institutions suggests that party autonomy in arbitrator appointment entails dealing in power, over arbitrator information, in ‘affective’ transnational commercial networks of community between individuals based on interpersonal trust. A hypothesis emerges about the gatekeeping effect of such networks which, if accepted, has positive implications for the potential role to be played by arbitral institutions in reinforcing party autonomy, rather than usurping it. [ABSTRACT FROM PUBLISHER]

As international arbitration expands, arbitral decision-making comes under scrutiny, with many raising legitimate questions: how do arbitrators decide? Do they tend to favour certain classes of parties? This article examines arbitral decision-making and puts forward three main propositions. First, that the legal concept of bias needs revisiting. For arbitration law and practice to effectively respond to criticism about the integrity of arbitration, the focus of our inquiry should include not only apparent bias associated with individual arbitrators, but also implicit and systemic bias. Second, the article provides a critical assessment of the existing empirical studies on arbitral decision-making. Although empirical studies have provided useful insight in arbitral judicial behaviour, they all depart from the same behavioural assumption that arbitral decision-making is driven almost exclusively by extra-legal factors, such as the personal traits, policy preferences or financial incentives of individual arbitrators. The article discusses the theoretical and methodological limitations of such a behavioural approach, and it, finally, offers an alternative model for the analysis of arbitral decision-making, which takes into account the influence of the broader institutional context within which arbitrators are embedded. Drawing on institutional theories, the article compares the procedural design of international arbitration with that of national and international judiciaries, and provides a description of the institutional structures of international arbitration and how they can affect the way that arbitrators decide. [ABSTRACT FROM PUBLISHER]

The standard of review to be applied by investment treaty tribunals when reviewing host state conduct is a crucial, but still insufficiently analysed issue. Although tribunals frequently make reference to ‘deference’ as the applicable standard, the criteria they apply to concretize that concept remain uncertain and little predictable. What is more, the conceptual foundations of granting deference to host states are opaque. The present article focuses on these foundations and argues that they are intrinsically connected to how investment treaty arbitration is qualified as either a form of commercial arbitration, a means to settle disputes under public international law, or as an internationalized form of judicial review in public law disputes. Siding with the latter, the present article proposes to conceptualize the standard of review within a separation of powers-framework that fuses domestic and international legal considerations in allocating power between states and arbitral tribunals. Within this framework, considerations originating from both international dispute settlement and comparative public law interact to determine and concretize the standard of review. [ABSTRACT FROM AUTHOR]

The present contribution focuses on the specific question of what may be called scientific fact-finding before international courts and tribunals. At the outset, one may query if there is such a thing as ‘scientific fact-finding’ by international courts and tribunals. Yet, when exploring the practice of international courts and tribunals, it appears that traditional fact-finding processes are being challenged by the ever-growing number of international scientific disputes. Still, international courts and tribunals seem reluctant in certain situations to acknowledge that traditional fact-finding needs to be reshaped and rethought to better address complex disputes characterized by scientific uncertainty. [ABSTRACT FROM AUTHOR]

Countries may adopt conflicting policies, such as food safety regulations, based on conflicting views on the ‘scientific truth’, and trade or investment disputes may arise between countries claiming different ‘scientific truths’. If such a dispute is referred to the World Trade Organization (WTO) or investment arbitration, a panel or arbitral tribunal faces the question of what the ‘scientific truth’ really is. This article reveals that a WTO panel is required to apply a deferential standard of review in the sense that the panel should refrain from making its own conclusion on the ‘scientific truth’ and limit itself to examining the reasonableness of the ‘truth’ claimed by the parties. In investment arbitration, while the deferential standard of review is hardly discussed explicitly, some arbitral tribunals have recognized the need to pay deference to the host state’s decisions regarding the ‘scientific truth’. This article also argues why the deferential standard of review should be applied. [ABSTRACT FROM AUTHOR]

The principle of ‘good faith’ in assessing the initiation of investment treaty claims has manifestly become an important rule of international investment arbitration. From a procedural perspective, ‘good faith’ plays a significant role at the jurisdictional stage of international arbitral proceedings; for questions relating to whether the investment was acquired in ‘good faith’ or whether investor’s initiation of a claim is made in ‘good faith’, in order to avoid an abuse of the arbitral process. Such assessments, procedurally speaking, can be characterized either as a question that goes to the jurisdiction of the arbitral tribunal and thus to the consent to arbitration, or as a question of the admissibility of the claim. This article will examine the position of the principles of ‘good faith’ and ‘abuse of process’ in the assessment by investment tribunals of their jurisdiction and the admissibility of the claim. In doing so, this article will show that the application of these principles in international investment arbitration may play an important role in shielding tribunals from abusive submissions, and thus avoiding abuses of the arbitral procedure and the direct access of foreign investors to international arbitration. [ABSTRACT FROM AUTHOR]

This article comments on Thomas Schultz’s argument that, if we want to think of international arbitration as a separate legal order, then we should submit it to some of the usual criteria used to assess the normative quality of a normative system, in particular Lon Fuller’s take of the rule of law. This reply explores additional reflections on what Lon Fuller’s work could contribute to the jurisprudence of transnational dispute resolution, drawing on Fuller’s writings on customary law (or ‘implicit law’ in Fuller’s terminology) and on the function of dispute resolution. The article ends by asking whether the law created by regimes of transnational dispute resolution is not of a fundamentally different nature than the law we find in states, and is thus subject to different criteria of legitimacy. [ABSTRACT FROM AUTHOR]

An introduction is presented in which the editor discusses various reports within the issue on topics including the maturity of international arbitration, an ancient parable of justice, and commercial arbitration and European Union law.

This article sets out a road map for the analysis of the role of arbitrators as settlement facilitators from a psychological perspective. Using the CEDR Rules for the Facilitation of Settlement in International Arbitration as an example, the authors briefly touches upon elements determining the role of arbitrators such as: cultural factors, social values and value-based attitudes, the divide between inquisitorial and adversarial process cultures, the need for arbitrators to combine the need for impartiality and independence with the need for their own ‘marketing’ towards reappointment, the positioning of the arbitrators within the tribunal as chair or co-arbitrator, the negotiation model with which the arbitrators are familiar, the ‘prestige’ associated with issuing a final and binding decision as opposed to encouraging the parties to agree, the position of the parties within the hierarchy of their own organization and the mandate they have received from their organization, and the sensitivity of the tribunal to perceptions of its authority. [ABSTRACT FROM AUTHOR]

International arbitration is a world of multiple interfaces among legal orders, marked by significant tensions at specific pressure points. It is the purpose of much, if not most scholarship in international arbitration to seek to resolve such tensions. In this article the author deals with a set of pressure points that has recently been brought to the surface in a particularly comprehensive and systemic manner, in the context of the Restatement of the US Law of International Commercial Arbitration: the clash between, on the one hand, the New York Convention and thus the international model of international arbitration and, on the other hand, the basic US federal legislation on international commercial arbitration and thus the US model on international arbitration. This clash, the author shows, becomes manifest with regard to issues including: awards made in the United States but whose enforcement is nevertheless governed by the New York Convention; the preclusive effects for other courts of a court’s decision on the scope of an arbitration agreement; the common law notion of collateral estoppel (issue preclusion—preclusive effects for other courts and tribunals of factual and legal findings) as opposed to the Convention’s focus on res judicata (claim preclusion); the application of forum non conveniens in actions to enforce an award; treating interim measures as awards; and the role of state public policy as opposed to federal public policy. [ABSTRACT FROM AUTHOR]

This article discusses different facets of the representation of States in investment arbitration with a focus on ICSID arbitrations. It reviews rules governing the determination of the representatives of a State, practical issues that arise with respect to such determination and the particulars of the ICSID system in appointing representatives of States. It then examines how problems relating to the representation of a State can be dealt with by curing the lack of authority of the person purporting to act on behalf of the State, by ratification of the acts in question, by reliance on the principles of estoppel and good faith and by invocation of the responsibility of the respondent State. [ABSTRACT FROM PUBLISHER]

This article revises and updates a seminal article written by the author in 1998, which was the first attempt to tally how many and what kind of international courts and tribunals existed at that point in time. It contained a chart that placed international courts and tribunals in a larger context, listing them alongside quasi-judicial bodies, implementation-control and other dispute settlement bodies. The present article has three aims. The first is to provide an update, since several new bodies have been created or have become active in the last decade. The second aim is a bit more ambitious. It is time to revise some of the categories and criteria of classification used back in 1998. More than a decade of scholarship in the field by legal scholars and political scientists has made it possible to gain a better understanding of the phenomenon. The abundance of data over a sufficiently long time-span is making it possible to start moving away from a mere ‘folk taxonomy’ towards a more rigorous scientific classification. The hallmark of truly scientific classifications is that classifying is only the final step of a process, and a classification only the means to communicate the end results. Besides making it possible to discover and describe, scientific classifications crucially enable prediction of new entities and categories. Thus, the third aim of this article is to attempt to discern some trends and make some predictions about future developments in this increasingly relevant field of international law and relations. [ABSTRACT FROM PUBLISHER]

The scope of jurisdiction of investment tribunals is a crucial question which often leads to protracted arguments in the course of regularly bifurcated arbitration proceedings. In recent years an increasing number of cases involved narrow dispute settlement clause in BITs which relate to the amount and mode of compensation only in cases of expropriation. Tribunals have differed on the appropriate reading of such clauses, in particular, on whether they should be regarded as excluding the issue whether an expropriation has occurred in the first place or not. In addition, some investment tribunals have relied on the post-Maffezini interpretation of MFN clauses in order to extend their jurisdiction beyond the narrow issue of the amount and mode of compensation. In its first part, this article intends to provide a comprehensive overview of the existing jurisprudence on this matter. Secondly, it analyses the different interpretation techniques resorted to by investment tribunals ultimately demonstrating that neither of them cogently leads to a certain outcome. [ABSTRACT FROM PUBLISHER]

This short article comments on the merits of Professor Chang-Fa Lo’s proposed eight rules for the good faith use of dictionaries in interpreting the World Trade Organization (WTO) covered agreements, which are formulated in reaction to the heavy and steady reliance on dictionaries in WTO dispute settlement. This reply questions the underlying premise for the need of such rules, and cautions against making conclusory statements about the value of using dictionaries and the need to rely on dictionaries in treaty interpretation in isolation from an appreciation of the function of other interpretive elements recognized under customary principles of treaty interpretation. [ABSTRACT FROM PUBLISHER]

If an arbitration system, hypothetically disconnected from states, were to seek to replicate the rule of law beyond the state, in its own transnational order, what would it look like? This question, which seems current given the proliferation of international dispute resolution mechanisms and the continuing rise of international arbitration, formed an implicit theme of the scholarship known as the School of Dijon. Some 30 years ago, the School of Dijon asserted the existence of non-national legal systems revolving around arbitration mechanisms, such as the lex mercatoria. Over the years, their claim developed into the argument that these systems’ own legality forms a basis for claims of autonomy from the state, the presence of law dispensing from the need for control by another legal order. This article argues, first, that this line of arguments is an enthymeme, as the concept of law has been the object of a near wholesale eschewal of definitional attention by the School of Dijon and its kindred theories. The article then maintains that any concept of law used for the aforementioned rhetorical and political purposes ought to include the fundamental principles of the rule of law. It then examines the guise that the rule of law takes when applied to transnational adjudicative normative orders instead of national legal systems. [ABSTRACT FROM PUBLISHER]

In national legal systems, precedent constitutes the starting-point of judges' reasoning. Most of the time, judges hew closely to precedent for purposes of legal certainty and for fear that their decisions might be challenged before higher instances. This practice translates into the stare decisis rule in Common Law, and into the concept of jurisprudence constante in Roman-German Law. In international law, the stare decisis rule has been excluded since 1922, but permanent jurisdictions constantly refer to their previous decisions. Nonetheless, the former are still led to reassess their jurisprudence by various methods in order to take into consideration the evolutions of the law and of international society. Regional jurisdictions are more inclined to do so than global ones. As for arbitral tribunals, they have recourse to legal precedents in a very variable manner according to the area: interstate relationships, international trade, investment or sport. Furthermore, the increase in the number of courts and arbitral institutions introduces the question whether precedents from one dispute settlement institution are relevant to others. The question arises when two courts or tribunals apply the same national law or treaty and when they apply general international law. The challenge is to navigate between two risks: that of jurisprudential incoherence and that of government by judges. Legal precedent in international dispute settlement is neither to be worshipped nor ignored. [ABSTRACT FROM PUBLISHER]

This article addresses the distinction between interpretation and application of international legal norms and argues that it constitutes an issue central to the theory and practice of international adjudication. The distinction, though sometimes negated, surpassed or simply neglected, in fact exists and should be drawn by international lawyers, especially vis-à-vis the challenges set by the fragmentation of international law. Ergo, an illustrative operative sketch of juridical reasoning delimiting the two processes in the course of international dispute settlement is suggested by distinguishing between interpretation, interpretative application and application stricto sensu, as all taking place in the context of application lato sensu of international legal norms. The article concludes by turning to the secondary norms on state responsibility and the general principles of estoppel and acquiescence as noteworthy examples of lato sensu application of leges generales in international settlement of disputes. [ABSTRACT FROM PUBLISHER]

In this article, the author discusses various consequences of the softness of soft law. He acknowledges that the concept of soft law is useful for certain endeavours in international law, such as understanding the international law-making process and the politics behind the adoption of legal instruments. But, for the activities of international judges and arbitrators, he contends that soft-law should be avoided. By appending the adjective ‘soft’ to the notion of law, we introduce the idea that legality obtains by degrees, a soft law rule being a rule ‘slightly’ legal in character. This, in turn, introduces uncertainty into a regulatory regime. And uncertainty is a disincentive for engaging in economic activities and it is a favoured technique of authoritarian governments. Hence, international judges and arbitrators should apply, and apply only, the law that comes without the adjective ‘soft’. [ABSTRACT FROM PUBLISHER]

In this article the author revisits the vexed question of whether the jurisdiction of an international tribunal, established in accordance with the terms of the basic treaty, can be expanded by reference to the terms of a third treaty through the investor's reliance upon the MFN clause in the basic treaty. The recent line of cases suggesting that no general answer to that question can be provided in view of the nuanced differences in the wording of MFN clauses is considered and criticized as failing to pay adequate attention to the principles of general international law as mandated by Article 31(3)(c) of the Vienna Convention on the Law of Treaties. The application of those principles leads to a negative answer to the question. A claim for MFN treatment secures the treatment represented by the third treaty, it does not effect the automatic incorporation of the terms of the third treaty into the basic treaty before the investor files its claim. Moreover, for the investor to assert a claim for MFN treatment it must first accept the standing offer of international arbitration in accordance with the terms of the basic treaty and at that point an arbitration agreement comes into existence. The terms of that agreement cannot be amended retroactively at the suit of one of the parties. There is a fundamental distinction in general international law between the substantive obligations in a treaty, which are addressed to the state parties, and the provisions that create a jurisdictional mandate for an international tribunal, which are addressed to the tribunal and to the disputing parties, who enter into a relationship of procedural equality once arbitration proceedings have been commenced. This distinction must be respected by investment treaty tribunals in confronting the question of the scope of MFN clauses. [ABSTRACT FROM PUBLISHER]

In this article, the author examines the codification of soft law in arbitration and its consequences. In her analysis, the author discusses the identity of the actors creating such ‘soft codes’, the causes of this codification and the constraining power of the resulting ‘soft normativity’. She further entertains the questions whether soft codes lead to a loss of flexibility and a lack of democratic legitimacy. These themes are illustrated by reference to the International Bar Association (IBA) Rules on Evidence, the IBA Guidelines on Conflicts of Interest, the United Nations Commission on International Trade Law Model Law and the International Chamber of Commerce Arbitration Rules. [ABSTRACT FROM PUBLISHER]