Arbitral Lawmaking and State Power: An Empirical Analysis of Investor-State...
The paper presents the results of a research focusing on (i) arbitral lawmaking, conceived as the development of precedent-based frameworks of argumentation and justification, and (ii) state responses to that lawmaking, as registered in subsequent treaty-making. After surveying the development of precedent within investor-state arbitration, I turn to how tribunals have constructed the two most arbitrated provisions of investment treaties: the prohibition of “indirect expropriation,” and investors’ entitlement to "fair and equitable treatment." I address four overlapping questions. First, what types of state measures have tribunals reviewed? Second, how have tribunals arbitrated claims in which states plead the general interest? Third, how do tribunals consider investors’ entitlements in relation to the state’s regulatory prerogatives, in particular, have tribunals been biased in favor of investors? We are not only interested in who wins and loses, but how and the extent to which tribunals take into consideration a state’s regulatory prerogatives, that is, its “right to regulate.” Fourth, have states used their treaty-making authority to constrain arbitrators going forward? In addition to presenting our findings on these matters, I will briefly touch on normative debates, and discuss data collection and research design.
Speaker: Alec Stone Sweet works in the fields of comparative and international law, and comparative and international politics. Prior to moving to NUS, he held chaired professorships at the Yale Law School and Nuffield College, Oxford. Books published by OUP include: The Institutional Evolution of International Arbitration: Judicialization, Governance, Legitimacy (forthcoming); A Europe of Rights: The Impact of the ECHR on National Legal Systems; The Judicial Construction of Europe; On Law, Politics, and Judicialization; The Institutionalization of Europe; Governing with Judges; European Integration and Supranational Governance; and The Birth of Judicial Politics in France. His research on law and courts has appeared in law journals, as well as the American Political Science Review, the American Journal of Sociology; Comparative Political Studies; the Journal of European Public Policy; the Journal of Common Market Studies; and West European Politics.
This is a Transnational Law Institute Colloquium.