Compliance Politics and International Investment Disputes
Illustration photo: Colourbox.com
About the project:
International investment arbitration is a controversial topic indeed. Through a network of over 3 000-investment treaties, foreign investors can sue states for discrimination, loss of property, and unexpected legal changes. While designed to prevent conflicts, the system is a lightning rod for critique. Developing countries lose frequently, tribunals only make judgments against states and investors have challenged sensitive topics such as climate change, public health and human rights. The procedure is shrouded in secrecy, dominated by Western arbitrators, and compensation levels can be astronomically high.
Yet, while scholarship has focused on the system’s origins and dynamics, little is known about what happens after a decision is made: It is a ‘black box’.
This project asks four questions:
- To what extent do states comply with decisions?
- Why do they comply with such controversial decisions?
- Do these findings change existing theories on how actors engage with international tribunals?
- What are the implications for the ongoing reform process at The United Nations Commission on International Trade Law (UNCITRAL)?
The research process and objectives:
The project relies on qualitative, quantitative, legal, and computational approaches. It will be carried out by a multi-disciplinary and multi-lingual team in three phases.
In the first phase, the compliance process for each compensation decision will be coded into Pluricourts’ award-winning Investment Treaty Arbitration Database (PITAD). This fact-finding is challenging: there is no final arbiter of compliance, enforcement processes occur in multiple courts throughout the world, and awards can be bought and sold on the open market. You can help also help us with data collection here.
In the second phase, both legal, qualitative, quantitative and computational methods are combined to understand states’ decisions over whether to comply. Is it due to financial costs and domestic politics? Or is it also driven by emotions and ideology?
The third phase involves putting the above findings in a broader context. Does arbitrators and investors adjust their behaviour in light of expected compliance? How do the research findings fit with existing theories on international tribunals?
UNCITRAL is at moment in the process of reforming the international investment arbitration system, and the project also aims to contribute to these negotiations.
Outcomes and impact:
The research will result in a series of journal articles in leading international journals, two international conferences, and the publication of compliance data in the project team's award-wining public database, PITAD.
The academic impact can be significant as the project can:
- Influence theories on judgment compliance for other international courts and tribunals.
- Show how compliance outcomes and expectations affect the behaviour of investors, states, and arbitration tribunals
- Introduce new theoretical perspectives and methodological approaches to compliance scholarship.
The societal impact can be equally significant. The project is partly motivated by requests from states in an UN reform process. The results will have consequences for how states consider the current backlash and how and whether they develop a new global court system. Information on compliance will also bring greater transparency to the field and benefit civil society actors, officials, and small and medium investors.
The research project is funded by The Norwegian Research Council for a five year period under the project number 326269. The University of Oslo is also contributing with funding.
The research project will be hosted by the research center PluriCourts until 2023.
Link to the Norwegian web page.
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