Investment Treaty Arbitration: Opportunities to reform arbitral rules and processes

Investors are increasingly turning to investor-state arbitration to challenge a wide range of government measures, including laws, regulations and administrative decisions in all economic sectors.

Less than 20 years ago this form of international arbitration was rarely used to settle disputes between foreign investors and host states. Now it is used frequently, and the number of cases is increasing rapidly. Issues of concern include the lack of transparency, the impartiality and independence of arbitrators, the lack of predictability and consistency of interpretation, and the high costs involved, to name a few. This paper identifies opportunities for the reform of arbitral rules and processes and assesses their potential impact and utility. In addition, the paper looks at the number of investor-state disputes brought under the different arbitration rules and administered by different institutions, and evaluates whether arbitrations conducted under different rules lead to similar outcomes for states and investors. The paper also examines the governing structures of the relevant institutions, comparing the reform opportunities between inter- and non-governmental bodies, and identifies selected areas for possible reform under different rules and institutions, including transparency, arbitrator independence, and consistency and correctness of arbitral awards. Finally, the findings of the paper are discussed in the context of the broader reform debate.