PluriCourts Seminar: ICSID and the Rise of Investor-State Arbitration
Recent criticism of investor-state arbitration has characterized it as an unaccountable, special-interest-driven threat to legitimate public policy. How did we get here; where did investor-state arbitration come from?
In this presentation, PluriCourts postdoctoral research fellow Taylor St John will present her research, which probes the intellectual, political, and economic forces behind the rise of investor-state arbitration.
First she will present the findings of her forthcoming book, ICSID and the Rise of Investor-State Arbitration, which charts this type of arbitration from a vague idea to an established practice embedded in thousands of treaties. She argues that a group of dedicated international bureaucrats led a gradual revolution in the way states and investors resolve disputes. While existing political science scholarship assumes that investor-state arbitration was state-led and created to augment investment treaties, new archival evidence from national and international archives reveals these assumptions to be incorrect. It was skillful bureaucrats who led the creation of the International Centre for Settlement of Investment Disputes (ICSID), the oldest and most important organization for investment arbitration, and then traveled the world advocating advance consent to arbitration. Over several decades, once-reluctant governments acceded, slowly integrating investor-state arbitration into their treaty practice. While many contemporary observers ignored these developments, officials within ICSID recognized that they created an “enormous potential clientele” as early as 1984. Scholarship on investment arbitration typically sees 1950-1980 as unimportant years, but St John argues that this is the crucial period to explain the rise of arbitration: the actions taken during these years of neglect and near-invisibility laid the foundations for the subsequent explosion in investment arbitration.
During the second half of the presentation, St John will turn to the rest of her PluriCourts research agenda, which will focus on questions of institutional design, negotiating dynamics, and how perceptions of legitimacy are affected (or not) by the actions of Secretariats and other international organizations. She will also discuss the promise and challenges of two ongoing interdisciplinary projects: one to build a database of consent to international arbitration provided in domestic investment laws and the second to combine archival work with text-as-data approaches.