Reasons not to Exit? A Survey of the Effectiveness and Spillover Effects of International Investment Arbitration

Duy Vu
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Duy Vu: Université Côte d'Azur

No 2018-35, GREDEG Working Papers from Groupe de REcherche en Droit, Economie, Gestion (GREDEG CNRS), Université Côte d'Azur, France

Abstract: One of the most important characteristics of an investment treaty is that often it grants aggrieved investors access to international arbitration. This arbitration system does not require a foreign investor to petition his home state in order to bring claims against a host state, and provides an alternative to resolving disputes in the host state’s local court. Although international investment arbitration is beneficial for countries in terms of foreign direct investment, it has been accused of not being transparent or effective especially in relation to environment or public health cases. Some countries expressed their discomfort with the current international investment law regime by radical exit solutions such as denunciation of the Convention on the settlement of investment disputes between states and nationals of other states, rejection of investor-state dispute settlement provisions and unilateral denunciation of investment treaties. Based on a vast law, economics and political science literature, this paper proposes arguments to examine these criticisms. First, it is argued that investor-state arbitration is currently a concern in both developing and developed countries. Second, although assessing the spillover effects of arbitration outcomes on some dimensions of public interests such as the environment or public health is not straightforward, the uncertainty that leads to arbitrariness and sometimes inconsistencies in arbitral decision-making exists and needs to be properly identified. Finally, this article argues that exit is not efficient at either the national or international levels, and that it is possible for countries to adapt the current regime to new situations without wholesale exit.

Keywords: International investment; investor-state dispute settlement; interdisciplinary studies; public interest (search for similar items in EconPapers)
JEL-codes: F21 F53 K41 (search for similar items in EconPapers)
Pages: 29 pages
Date: 2018-12
New Economics Papers: this item is included in nep-law
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Published in European Journal of Law and Economics, 2019, vol. 47, no. 2. pp. 291-319.

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