Empirical Perspectives on Investment Arbitration: what do we know? Does it matter? ISDS Academic Forum Working Group 7 Paper.

The last decade has witnessed a burgeoning empirical research field on investment treaty arbitration (ITA). Probing its origins, functioning and effects – and even doctrinal questions, scholars have used a range of methods (quantitative, qualitative and computational) to analyze the regime. Such empirical research has been greatly facilitated by the rapid expansion and proliferation in the number of treaties, arbitrations and accompanying actors, which has facilitated the analysis of broader patterns and the development of generalizable findings. It is also a creature of the times. The new research agenda in field of international investment arbitration corresponds with the broader empirical turn in international law, which has supported and legitimated the application of social and computer sciences to law.1This Working Group paper seeks to provide a state-of-the-art summary and assessment of the empirical research on the identified concerns of states in the reform of investment treaty arbitration in UNCITRAL Working Group III. These concerns are reflected in the six working group themes identified for the first phase of the Investor-State Dispute Settlement (ISDS) Academic Forum’s collective work: (1) excessive costs; (2) excessive duration of proceedings; (3) lack of consistency in legal interpretation; (4) incorrectness of decisions; (5) lack of arbitral diversity; and (6) Lack of independence, impartiality, and neutrality of ISDS adjudicators. Interestingly, and as we shall see, empirical research has helped shaped the choice of issues by states in the UNCITRAL reform process– especially on questions on diversity, independence and, to some extent, costs.

By Daniel Behn, Malcolm Langford and Laura Létourneau-Tremblay (March 15, 2019).