ABSTRACT Concern with the selection and appointment of arbitrators has been central in the ‘legitimacy crisis’ surrounding investor–state dispute settlement (ISDS). The regime has been criticized for the outsized role of litigating parties in appointment, absence of transparency in the appointment procedure, potential for conflicts of interests, lack of diversity, and little emphasis on public international law competence. However, attempts to reform the selection and appointment of adjudicators involve confronting dilemmas, requiring trade-offs between different normative values. We therefore introduce a quadrilemma that captures the underlying values of independence, accountability, diversity, and procedural fairness that actors often seek to realize through adjudicatory design. We then set out seven idealized selection and appointment reform options under discussion in the ISDS reform process at UN Commission on International Trade Law (UNCITRAL) (from incremental reform through to new permanent mechanisms and removal of ISDS). The quadrilemma is employed to analyse their advantages and disadvantages of each model. In light of empirical and doctrinal evidence, it is clear that some reform options are more likely than others to optimize the quadrilemma. However, the effects are often conditional and sometimes there is a need for accompanying mechanisms.

Monetary damages is the ordinary remedy in investor-state dispute settlement (ISDS). As such, arbitral practice relating to damages has direct, practical relevance for states and investors. The size of damages awards is also amongst the core critiques of ISDS. It is somewhat surprising, then, that the issue of damages has not figured prominently in discussions on reform of investment treaties and the ISDS mechanism, including those currently underway in Working Group III of the United Nations Commission on International Trade Law (UNCITRAL). In this context, this article makes three contributions. First, it provides an overview of empirical trends in damages in ISDS. Secondly, it considers the extent to which tribunals’ approaches to damages raise the sorts of concerns with ISDS identified by UNCITRAL Working Group III, focusing specifically on concerns of correctness, consistency, legal and expert costs, and independence and impartiality. Thirdly, it identifies a range of possible procedural and substantive reform options that might alleviate these concerns.

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The lack of geographic diversity among arbitrators is a common critique of investor–state dispute settlement. This has emerged as a major legitimacy problem as 80% of ISDS cases are against non-Western respondent states. In this chapter, the authors map the existing level of diversity with new methods (tracking both nationality and residence) and examine whether greater diversity would make a difference in outcomes. The descriptive statistics reveal that only a third of arbitral appointments have gone to non-Western individuals, and that this falls to 25% when residence is taken into account. However, the issue becomes more complicated when examining the effect on outcomes. The regression analysis indicates that the absence of geographic representativeness can favour Western home and host states, especially when the Chair is from the West. However, possibly due to a high degree of institutionalization and socialization of arbitrators in the system, it does not appear at present that arbitrator nationality has a significant effect on outcomes.

The rapid growth in investor–state dispute settlement has sparked a decades-long legitimacy crisis in the international investment regime. The upshot is that concerns over foreign investor success in arbitration proceedings, from levels of compensation to lack of arbitral diversity and independence, has prompted wide-ranging reform efforts and even calls to abolish this treaty-based system. In the context of this historical and contemporary debate, the authors describe the importance of assessing empirically the claims and counter-claims about the regime’s absence of legitimacy. The chapter begins with an overview of the different types of legitimacy (normative, sociological, legitimation) and discusses how and to what extent empirical research can contribute to assessing legitimacy claims. The different chapters of the book, which is structured largely according to legitimacy categories, are then introduced and the piece concludes with some reflections on the overall themes and way forward for empirical research.

Any assessment of the international investment regime and its legitimacy crisis requires a preliminary understanding of their important and relevant features. However, the sprawling nature of both defies most doctrinal and qualitative attempts at description. The regime is based on a decentralized network of legal instruments, different procedural mechanisms and ad hoc proceedings, while the accompanying chorus of critique and counter-critique is populated with multiple actors and interests across the world. This chapter seeks to capture this distinct and fragmented universe. First, the authors map consent to arbitration, not on a generic per signed bilateral investment treaty basis, but rather by tracking multilateral, bilateral and unilateral consents in force. Second, they provide a description and overview of the over 1,100 registered cases up to January 2020, focusing inter alia on case outcomes, rules, cases types, institution, parties, economic sector and legal basis. Third, they trace discontent with regime, charting the origin of legitimacy crisis and its maturing over time. It ends by discussing both state-led efforts at reform and the extent to which arbitrators themselves have adjusted reflexively to the backlash.

The absence of ISDS cases against China may mean that investors are deprived of adequate and effective remedies for resolving investment disputes. Based on [type of empirical research], the authors find support for the view that the procedures offered by Chinese IIAs and legislation promote dispute resolution that is mutually satisfactory among investors and closely related public officials. However, they also find a possible trade-off in the sense that such solutions might depend on and promote corruption. Against this background, they explore how ISDS could contribute to combating corruption. [Abstract needs to be filled out and follow a logic of legitimacy critique, research method, finding/caveats – not currently clear]

The relationship between the concepts of international investment law and global public goods poses two essential challenges. The first is whether the international investment regime by design is a global public good. The second is whether the regime delivers benefits that are public and global in nature. This chapter addresses these two challenges through a largely empirical perspective. Drawing on three datasets, the authors seek to move beyond the current theorizing in the literature on this theme and base their findings on a comprehensive de jure and de facto analysis. After having discussed the idea of global public goods, they find that the regime high levels of de facto exclusion and in places rivalry, together with an uneven distribution of benefits, such that the international investment regime only partly fits the requirements for a global public good.

As a diffuse, sprawling, relatively opaque and increasingly polarized legal order, the international investment regime, with its thousands of largely bilateral investment treaties, ad hoc system of adjudication – called investor–state arbitration or investor–state dispute settlement (ISDS) – and a decades-long legitimacy crisis and backlash against its practice make it a challenging phenomenon to accurately describe and assess. It also makes the identification and prioritization of its most problematic and reform-worthy areas of concern difficult to pin down. Without empirical data, the international investment regime has been, and to some degree continues to be, very susceptible to heuristics based on limited information, anecdote, and surface-level policy prescription.

For over a decade, investor-state dispute settlement (ISDS) has suffered a socalled legitimacy crisis.1 Critics have argued that ISDS is pro-investor, biased against developing countries, beset by incoherent jurisprudence and plagued by a lack of transparency and excessive costs and compensation.2While the 1 Amongst the first scholarly critiques was Susan D.

Force Majeure and Hardship provide legal tools to deal with the effect of unexpected future events and unforeseen changes in circumstances, particularly in long-term contracts. Given its global and unprecedented dimensions, its lethal potential and its drastic effects on international contracts the COVID-19 pandemic will generate years, if not decades, of post-pandemic litigation and arbitration focusing on the application of these two concepts. The paper examines the two concepts, from their historic origins over the different paths they took in civil and common law to modern transnational contract law as applied by international arbitral tribunals. Based on this historic and comparative analysis, the paper shows that in such extraordinary times, the doctrines of Force Majeure and Hardship assume the role of regular, rather than exceptional legal remedies, allowing for the risks emanating from the unprecedented crisis to be evenly distributed between the players in the global economy.

Due to the problem-centric nature of its mandate, empirical research has been relatively central in the United Nations Commission on International Trade Law (UNCITRAL) investment arbitration reform process. In this article, the authors seek to provide a state-of-the-art summary and assessment of empirical studies on the six identified concerns of states: legal cost, duration of proceedings, consistency, correctness, diversity and independence. The article asks: (1) What do we know? and (2) Does it matter? The survey of evidence reveals an emerging base of quantitative, qualitative and computational evidence for justifying some but not all concerns and understanding their causes. However, there are challenges in accessing all relevant data, modelling outcomes and evaluating whether there was normatively a problem. The article concludes by indicating that some concerns are clearly justified, others not, and others fall within an unknown category.

The United Nations Commission on International Trade Law (UNCITRAL) Working Group III on ISDS (Investor-State Dispute Settlement) Reform considers issues of adjudicator diversity to be an area of concern for the legitimacy of the ISDS system. Studies show that nearly all of the most prominent and repeatedly appointed arbitrators in ISDS cases are men from the Global North with significant prior experience in ISDS cases. Rather than being seen as fair, just, and devoid of bias, decisions are sometimes suspected to be the products of adjudicators who share a particular world view. This article focuses on four key issues: (1) how a lack diversity affects the real and perceived legitimacy of the ISDS system; (2) empirical evidence on the current extent of the diversity problem in ISDS; (3) the causes of the perpetuation of the diversity deficit in ISDS; and (4) what can be done to improve diversity in ISDS.

The ongoing 'legitimacy crisis' in investor-State dispute settlement (ISDS) has triggered a comprehensive attempt at multilateral reform. In 2017, Working Group III at the United Nations Commission on International Trade Law (UNCITRAL) was entrusted with a broad, open-ended and problem-driven mandate. The reform process aims to tackle particular concerns with ISDS: excessive costs and lengthy proceedings, inconsistent and incorrect decisions, and a lack of arbitral diversity and independence. The exclusion of substantive treaty reform has met critique but states are considering a wide range of procedural options from incremental reform to a multilateral court, appellate mechanism, and ISDS alternatives. In this article, we introduce the reform process and the seven articles that follow in this Special Issue of the Journal on World and Investment and Trade. In these contributions, ISDS Academic Forum members analyse the basis for each concern and the potential contribution of leading reform models.

Speed is often touted as an advantage of arbitration. In recent years, however, some have worried that investment arbitration risks losing this advantage. Concerns about the length of investor-State dispute settlement (ISDS) proceedings have also been raised in the discussion about IS DS reform. This article analyses the duration of IS DS proceedings applying a data-centric approach and evaluates the impact of proposed ISDS reforms on the duration of proceedings. After some terminological clarifications on when proceedings are 'excessively' long, the article sets out the evidence on the length of proceedings using several data-sets. As a comparator, we present data on the length of World Trade Organization (WTO) proceedings, even though we urge caution as to the usefulness of such a comparator. The article then discusses the impact of various reform proposals on the duration of proceedings, namely improving ISDS, adding an appellate mechanism, establishing a multilateral investment court and abolishing ISDS.

State backlash has marked dispute settlement mechanisms in both the international trade and investment treaty regimes. For the former, the transition from the General Agreement on Tariffs and Trade (GATT) dispute panels to the World Trade Organization’s (WTO) Dispute Settlement Mechanism (DSM) represented a notable instance of the turn toward international courts within world politics.

Recent trends suggest that international economic law may be witnessing a renaissance of convergence – both parallel and intersectional. The adjudicative process also reveals signs of convergence. These diverse claims of convergence are of legal, empirical and normative interest. Yet, convergence discourse also warrants scepticism. This volume therefore aims to contribute to both the general debate on the fragmentation of international law and the discourse concerning the interplay between international trade and investment, with a particular focus on dispute settlement. It especially seeks to move beyond broad observations or singular case studies to provide an informed and wide-reaching assessment by investigating multiple standards, processes, mechanisms and behaviours. Methodologically, a normative stance is largely eschewed in favour of a range of ‘doctrinal,’ quantitative and qualitative methods that are used to address the research questions. Furthermore, in determining the extent of convergence, it is important to recognize that there is no bright line or clear yardstick for determining its nature or degree.

During periods of armed conflict, a State’s treaty commitments may be suspended or replaced by other international legal obligations, often relating to international humanitarian law, the laws of war or international human rights law. However, international investment agreements (IIAs) may be distinct in this respect. A State’s ability to derogate from its IIA obligations during periods of armed conflict is likely to be extremely limited or impossible; many IIAs explicitly provide protections to foreign investors in times of armed conflict or war. What is less clear is how the incidence of armed conflict within the territory of a State subject to an investment treaty dispute is to be resolved by an arbitral tribunal when the armed conflict is not—and possibly cannot be—clearly defined; or where there are cycles of war and peace within short periods of time and relating to the same general situation. We address this question in the context of the Libyan Civil War, considering the most relevant standards of protection included in IIAs concluded by Libya, as well as the most likely defences which Libya may invoke to preclude wrongfulness for possible breaches of its IIA obligations.

Is investment treaty arbitration (ITA) tarnished by a bias against developing states? The international investment regime relies heavily on arbitration for the enforcement of its substantive rules but critique has risen as the number of foreign investor claims have stacked up in recent years. Current empirical research is ambiguous in its evaluation of ITA outcomes, but an interesting strand finds that the difference in treatment afforded to developed and developing respondent states in ITA seems to be explained by a conflation of democratic governance and economic development status. We present an elaboration of this con-flation theory and, using the largest dataset of ITA cases compiled to date, we conduct a more thorough empirical test of its tenets. Our findings importantly determine that, instead of an anti-developing state bias disfavoring less developed respondent states in ITA, there appears to be a strong pro-developed state bias favoring more developed respondent states in ITA. That is, higher economic development at the respondent state level is associated with lower claimant-investor success rates in ITA. However, we also find partial support for the conflation theory. While a state's overall democratic governance levels per se do not explain the pro-developed respondent state favoritism in ITA, we find that two particular governance aspectsthe strength of a state's ability to protect property rights and the degree to which a state maintains impartial bureaucraciescan possibly explain higher degrees of respondent state success in defending against ITA claims. The strength of these state-level governance institutions also possibly explains why relatively wealthy respondent states fare better in ITA than other respondent states.