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Judicial economy and moving bars in international investment arbitration

Author

Listed:
  • Leslie Johns

    (UCLA)

  • Calvin Thrall

    (University of Texas at Austin)

  • Rachel L. Wellhausen

    (University of Texas at Austin)

Abstract

Historically, international investment law has centered on protecting foreign investors from direct expropriation, but much of modern law includes legal standards that allow investors to win compensation for other kinds of investor-state disputes. A prominent criticism among scholars and policy advocates is that modern legal protections allow investors to pursue increasing numbers of frivolous, low-merit cases. We contend that this claim overlooks the impact of judicial economy and changing legal standards: since foreign investors only need to prove a main legal violation to secure compensation, arbitrators can and do rule only on those standards that are most easily proven, in particular, contemporary legal protections. As a result, measures based on legal claims and rulings cannot provide definitive evidence of merit, and fears about trends in frivolous litigation under international investment law may be overstated.

Suggested Citation

  • Leslie Johns & Calvin Thrall & Rachel L. Wellhausen, 2020. "Judicial economy and moving bars in international investment arbitration," The Review of International Organizations, Springer, vol. 15(4), pages 923-945, October.
    • Handle: RePEc:spr:revint:v:15:y:2020:i:4:d:10.1007_s11558-019-09364-y
    DOI: 10.1007/s11558-019-09364-y
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    References listed on IDEAS

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    1. Clint Peinhardt & Rachel L. Wellhausen, 2016. "Withdrawing from Investment Treaties but Protecting Investment," Global Policy, London School of Economics and Political Science, vol. 7(4), pages 571-576, November.
    2. Busch, Marc L. & Pelc, Krzysztof J., 2010. "The Politics of Judicial Economy at the World Trade Organization," International Organization, Cambridge University Press, vol. 64(2), pages 257-279, April.
    3. Von Stein, Jana, 2005. "Do Treaties Constrain or Screen? Selection Bias and Treaty Compliance," American Political Science Review, Cambridge University Press, vol. 99(4), pages 611-622, November.
    4. Yoram Z. Haftel & Alexander Thompson, 2018. "When do states renegotiate investment agreements? The impact of arbitration," The Review of International Organizations, Springer, vol. 13(1), pages 25-48, March.
    5. Sornarajah,M., 2017. "The International Law on Foreign Investment," Cambridge Books, Cambridge University Press, number 9781107590144, December.
    6. Srividya Jandhyala & Witold J. Henisz & Edward D. Mansfield, 2011. "Three Waves of BITs," Journal of Conflict Resolution, Peace Science Society (International), vol. 55(6), pages 1047-1073, December.
    7. Sornarajah,M., 2017. "The International Law on Foreign Investment," Cambridge Books, Cambridge University Press, number 9781107133624, December.
    8. Ryan Brutger & Julia Morse, 2015. "Balancing law and politics: Judicial incentives in WTO dispute settlement," The Review of International Organizations, Springer, vol. 10(2), pages 179-205, June.
    9. Julian Donaubauer & Peter Nunnenkamp, 2018. "EU Investors versus EU States: International Arbitration of Investment Disputes," Journal of Common Market Studies, Wiley Blackwell, vol. 56(6), pages 1376-1393, September.
    10. Lisa Diependaele & Ferdi De Ville & Sigrid Sterckx, 2019. "Assessing the Normative Legitimacy of Investment Arbitration: The EU’s Investment Court System," New Political Economy, Taylor & Francis Journals, vol. 24(1), pages 37-61, January.
    11. Yonatan Lupu, 2013. "The Informative Power of Treaty Commitment: Using the Spatial Model to Address Selection Effects," American Journal of Political Science, John Wiley & Sons, vol. 57(4), pages 912-925, October.
    12. Pelc, Krzysztof J., 2014. "The Politics of Precedent in International Law: A Social Network Application—ERRATUM," American Political Science Review, Cambridge University Press, vol. 108(4), pages 886-886, November.
    13. Pelc, Krzysztof J., 2014. "The Politics of Precedent in International Law: A Social Network Application," American Political Science Review, Cambridge University Press, vol. 108(3), pages 547-564, August.
    14. Michael S Minor, 1994. "The Demise of Expropriation as an Instrument of LDC Policy 1980-1992," Journal of International Business Studies, Palgrave Macmillan;Academy of International Business, vol. 25(1), pages 177-188, March.
    15. Pelc, Krzysztof J., 2017. "What Explains the Low Success Rate of Investor-State Disputes?," International Organization, Cambridge University Press, vol. 71(3), pages 559-583, July.
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    Cited by:

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    2. Simon Hartmann & Thomas Lindner & Jakob Müllner & Jonas Puck, 2022. "Beyond the nation-state: Anchoring supranational institutions in international business research," Journal of International Business Studies, Palgrave Macmillan;Academy of International Business, vol. 53(6), pages 1282-1306, August.
    3. Tarald Gulseth Berge & Øyvind Stiansen, 2023. "Bureaucratic capacity and preference attainment in international economic negotiations," The Review of International Organizations, Springer, vol. 18(3), pages 467-498, July.

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