Who participates in international economic lawmaking, and who should participate? What roles are appropriate for private industry or private legal practitioners, or for academics or civil society, and what roles are reserved for states? The composition of international economic lawmaking bodies is often relatively fluid, not fixed as it appears from the outside. There are both natural fluctuations and orchestrated shifts in participation-states and other actors can strategically shape who participates, and this fluidity means questions about participation emerge regularly. We examine how these questions played out in one international economic lawmaking body-the United Nations Commission on International Trade Law (UNCITRAL) Working Group III-as it transformed between 2017 and 2020. During these years, reform-minded states and others recast the Working Group by pushing private arbitral practitioners out and pulling state officials in. We use large-N attendance data, ethnographic observation, and interviews with participants to illustrate the decision to recast, the new cast of officials, and the various responses to recasting from the old cast of practitioners. We document how the physical presence of practitioners changed, then chronicle how arbitral experience changed in value, and how practitioners' views on their role diverged.

The ability to ensure compliance with investor-state arbitral awards is often regarded as one of the strengths of the international investment regime. Yet, there have been few systematic studies of compliance to assess the extent to which states have actually complied with adverse investor-state compensation awards. This paper presents a new dataset that enables empirical research on compliance with these decisions; it is the first publicly available dataset to focus on what happens after awards are handed down, and in this way complements other databases on international investment law. This paper explains the data collection process (and its associated challenges), discusses the design choices made in selecting inputs and variables, presents a descriptive overview of the data, and examines how variables can be used in future research. Moreover, various cases are used as illustrations of the challenges of collecting and coding data on post-award processes and we explore what missing data can tell us about compliance dynamics.

International investment disputes occupy a curious place in the research programme on compliance. On the one hand, there is a widespread presumption that respondent states generally pay the compensation that they are ordered to pay because not doing so risks more litigation or less investment. On the other hand, these disputes frequently continue long after awards are handed down, there are visible instances of non-payment and there is little evidence about if or how most disputes are actually resolved. Compliance with investor-state dispute settlement (ISDS) awards has also been difficult to study because much of what occurs after an arbitral decision falls outside traditional understandings of compliance processes. Therefore, in this article, we introduce a broader term - resolution - and look beyond payment at a wider landscape of post-award dynamics. We also introduce a framework to bring these dynamics into view. This framework places awards in the context of longer-term bargaining and articulates how bargaining is different when it occurs in the shadow of an award. We present three mechanisms through which awards can shape outcomes - as a legitimate outcome, as a coordinating focal point, or as a bargaining endowment - before arguing that the third mechanism is the most common in the context of ISDS.

Regime complexity provides states with more choices about where and how to govern issues. They can select among competing institutions, create new institutions or repurpose old ones. Although forum shopping and creation are familiar to International Relations scholars, we know less about how existing institutions are repurposed. We elaborate one repurposing strategy here—forum recasting—a strategy to change an institution by changing who acts within it. We develop forum recasting by examining one case of it, the struggle to push private sector actors out and pull state officials in at the United Nations Commission on International Trade Law. Drawing on attendance data, five years of ethnographic observation, and interviews with participants, we explore why and how officials adopted a recasting strategy and how other actors responded to it. We also discuss other contemporary examples of recasting in global governance, such as growing participation by Chinese firms in standard-setting bodies.

This article summarizes insights from political science and empirical legal scholarship concerning selection and appointment of adjudicators to permanent international courts (ICs). This scholarship suggests that designers of ICs face challenging trade-offs in balancing judicial independence and accountability, as well as in promoting descriptive representation and necessary qualifications on the bench. The article considers different institutional design features related to appointment procedures: representation, reappointment, screening procedures and procedures for removing judges. Representation is discussed in a series of sections considering full or selective representation, voting rules and geographic and gender quotas and aspirational targets. Throughout, we draw on data on 24 ICs to illustrate the different appointment procedures and institutional features.

How do actors undertake institutional design in complex systems? Scholars recognize that many international regimes are becoming increasingly complex. Yet relatively little is known about how actors design or redesign institutions amid this complexity. As participant-observers in the UN negotiations on investment treaty reform, we have watched state officials and other participants grapple with this question for several years. To help explain what we have observed, we conceptualize these participants as complex designers-actors who seek to design and redesign institutions within complex adaptive systems. We then formulate three emergent design principles that seem to guide their approach as they aim to create: flexible structures, balanced content, and adaptive management processes. In a dynamic era marked by unpredictability, division, and complex transnational challenges, we believe these concepts may prove to be increasingly relevant in global governance.

In recent years, several proposals by states to reform or displace investor-state dispute settlement (ISDS) have gained prominence. While many factors shape which reform proposals states support, here we focus on one important, but often overlooked, factor: the 'insider' or 'outsider' status of the government officials who formulate states' proposals. Based on five years of para-ethnographic observation and interviews with officials involved in ISDS reform, and informed by the interdisciplinary innovation literature, we explore how individuals who have not spent their careers within the field of investment arbitration (and are perceived as 'outsiders' by those within that field) have developed more disruptive reform proposals while arbitral insiders have typically proposed sustaining reforms. We illuminate these dynamics in the ISDS reform debates with case studies of four actors: the USA, the European Union, Bahrain and Brazil.

Contemporary investment law is often depicted as a field in which transnational corporations and other private actors float freely above territorially bound, constrained states. Investment law epitomises fears about the erosion of sovereignty in these depictions. Yet sovereignty is a concept with layers of meaning, and a loss of policymaking autonomy, while important, is only one story of sovereignty in investment law. This chapter draws out three conceptions of sovereignty and how they manifest to officials negotiating investment law reform at the United Nations today. The first conception is sovereignty as control, as supreme authority within a defined territory. Concerns that investment law has eroded the ability of states to make policy fit here. The second conception is sovereignty as eligibility, as recognition that a government is eligible to participate in intergovernmental deliberations. Recognised states are the only actors eligible to participate formally in investment law reform at the United Nations. The third conception is sovereignty as capability, as being able to participate meaningfully in intergovernmental deliberations. While all governments are eligible, their actual participation in reform varies. In investment law, the persistence of sovereignty serves as a bridge to enduring questions about who should participate in rulemaking.

Globally, 74 countries have domestic investment laws that mention investor-state arbitration and 42 of these laws provide consent to it.That is, they give foreign investors the right to bypass national courts and bring claims directly to arbitration.What explains this variation, and why do any governments include investor-state arbitration in domestic legislation?We argue that governments incorporate arbitration into their domestic laws because doing so was labelled 'international best practice' by specialist units at the World Bank.We introduce the concept of asymmetric diffusion, which occurs when a policy is framed as international best practice but only recommended to a subset of states.No developed state consents to arbitration in their domestic law, nor does the World Bank recommend that they do so.Yet we show that governments who receive technical assistance from the World Bank's Foreign Investment Advisory Service are more likely to include arbitration in their laws.We first use event history analysis and find that receiving World Bank technical assistance is an exceptionally strong predictor of domestic investment laws with arbitration.Then we illustrate our argument with a case study of the Kyrgyz Republic's 2003 law.

Is investor–state arbitration a radical departure from earlier mechanisms for resolving disputes between foreign investors and states? On one hand, the first investment treaty arbitration was decided in 1990 and was ‘dramatically different from anything previously known in the international sphere.’ On the other hand, scholars convincingly present investor–state arbitration as a direct descendant of legal practices in previous centuries. There is no shortage of antecedents for investor–state arbitration, so why is it perceived as ‘dramatically different’ from what had gone before? In the second half of the 20th century, consent to investor–state arbitration was provided prospectively (before disputes arose) and pursuant to generalized jurisdiction (for any treaty breach); these are the key differences from previous practices. Two institutional developments were crucial for creating prospective, generalized consent. First, the ICSID Convention emerged. Second, provisions providing consent to investor–state arbitration were added to investment treaties. This chapter focuses on these two developments. It reconstructs the choices that officials faced, their constraints, and the reasons why they made the choice for investor–state arbitration against other alternatives. To do so, it uses primary documents from five archives: the American, British, German, and Swiss national archives as well as the World Bank archives.

In UNCITRAL, states have broken through the impasse of the incrementalist and systemic reformer camps. They have all agreed that they want to pursue systemic reform, but they have different ideas about what that entails and what to prioritise. In broad terms, agreement seems to be coalescing around three main blocks of reforms: updating some of the procedural rules; enacting some sort of optional structural changes for dispute settlement; and creating a mechanism to support developing states with handling their treaties and disputes. Not every state is supportive of every proposal, but most seem open to pursuing all three in a (somewhat) simultaneous fashion. That leaves an important question, which is starting to bubble up on the side lines of the negotiations: how might these different reforms fit together? Instead of treating the proposals as oppositional, could a flexible framework be developed that would allow multiple reforms to be developed over time in order to create a more holistic approach? What would this look like? What are the component parts or building blocks and how might they fit together? Here we provide our initial thoughts on how to visualise a flexible framework for ISDS reform and how these more centralised reforms might operate within the wider more decentralised field. The framework we present is not simply a descriptive synthesis of the discussions to date, but rather a way to look at the various options raised in their entirety — including how they overlap and relate to one another.

Chapter five analyzes initial state responses to the idea of ICSID. The Bank invited states to send legal experts, even if these individuals were not government officials. Despite their shared methods and language, these experts-designate expressed a variety of views about investor–state arbitration during the consultative conferences. Some experts from capital-importing states were convinced by the Bank’s argument that joining ICSID would improve their investment climate, but many questioned this argument. While the Bank argued that ICSID merely institutionalized existing practice, many experts-designate found the Convention’s potential legal implications unsettling. Several experts-designate expressed concern about the consequences of elevating investors to equal standing with states. Others, especially in the Asian consultative conference, were concerned about public policy implications, and in particular that the Convention might constrain domestic policymaking. Many experts-designate sought tighter limits on the Convention’s jurisdiction, and the Bank relied on the Convention’s double-consent requirement to assuage these concerns.

This chapter discusses the three proposals for investment protection discussed during the 1960s: a substantive code, an insurance organization, and an investor–state arbitration convention. Investors were largely uninterested in arbitration, except for a few individuals with personal experience of expropriation. While proposals for individual standing existed before, Hermann Abs’ proposals had a new resonance in West Germany during the 1950s. Abs’ proposals, even after modifications by Hartley Shawcross and others, had little chance multilaterally, however: America and the UK were opposed. By 1963, Germany and Switzerland lost interest in multilateral negotiations, as they realized they could get higher standards in bilateral investment treaties. German and Swiss treaties provided access to investment insurance, not investor–state arbitration. Proposals for a multilateral insurance agency were widely supported, but were not realized in large part because the World Bank refused to play an agenda-setting or brokering role for insurance during the 1960s.