The Politics of International Investment Arbitrators

When attention turns to the politics of international investment arbitration, quickly enough the inquiry evolves into questions about international arbitrators. While investment treaties established the skeletal structure of investment arbitration, international arbitrators are the ones who have put the meat on those bones. Investment arbitrators have shaped various aspects of the international investment arbitration law and the dispute resolution system itself, from establishing critical features of jurisdiction, to the extent and limits of participation of amicus, to the scope of interim relief, to the procedural framework, to regulation of attorneys. They have made many of these changes through published decisions, which are subsequently relied on as precedent. Many other structural features, however, have been developed through more implicit establishment of best practices and internal procedural orders. The bare bones nature of investment arbitration architecture also translates into how it regulates international arbitrators. Unlike the New York Convention, the ICSID Convention includes some basic language about arbitrator impartiality. That basic language, however, fails to address the complex and nuanced issues that have arisen, and whose importance is heightened by the outsized role that international arbitrators have in contributing to the construction of the overall system. Those issues include challenges to the party-appointment process, to repeat appointments by one “side” of the ideological divide (private investors vs. states), and to so-called arbitrators’ “issue conflicts.” Some critics of the system are championing a more omnibus call for complete abolition of investment arbitrators in favor of a permanent court for investment disputes. This symposium contribution will argue against calls for shift to a permanent investment arbitration court, but use the comparison between a hypothetical investment arbitration court and the current regime to explore some of the structural challenges to international arbitrators. It will argue for reforms that will address some of the most trenchant concerns about investment arbitrators, but also put forward an affirmative case for how investment arbitration, as well as investment law, international law and international adjudication, more generally benefits from the role of investment arbitrators