One may debate whether the tremors of a systemic crisis in
investment arbitration are real, and, if so, of a great enough
magnitude to shake its foundations, but it is no longer possible to
deny that the current system is coming under intensive scrutiny.
International lawyers, who recognize the indispensability of a
well-functioning system for settling investment disputes, should be
concerned about enhancing the legitimacy and functionality of
investment arbitration. A well-calibrated response to the
challenges facing investment arbitration is essential to ensuring
its long-term future. Critics must be answered; enquiries made;
reassessments undertaken. If crucial questions continue to be
ignored, or simply glossed over, the strength of, and consequences
flowing from, the backlash are likely to be greater in scale. This
book, which grew out of a conference held at Harvard Law School in
April 2008, aims to uncover the concerns driving the backlash
against the present international investment regime. Thirty-one
contributors - academics, practitioners, government officials and
representatives of civil society - analyze both the current state
and future direction of the international investment regime, and
offer valuable insights into possible ways of improving the system.
The concerns fuelling the backlash, and addressed in this book,
include: - shrinking of domestic policy space - competitive
pressures to sign investment treaties as a reason why increased
investment flows may prove elusive - inflexibility of treaty
obligations and lack of coordinated responses to changing
circumstances, especially in financial crises - renegotiation and
termination of bilateral investment treaties - lack of democratic
accountability and pro-investor bias - pervasive secrecy and
confidentiality of arbitral proceedings - conflicts of interest and
the continuing quest for effective rules governing the conduct of
arbitrator and counsel - reassessment of the traditionally
perceived advantages of arbitration, such as speed, low cost, and
neutrality - the extent of protection afforded to shareholders in
connection with denial of benefits clauses - third parties as
representatives of the public interest or advocates for organized
private interests - relationship between EU law and BITs -
restrictions on international arbitration in constitutional law -
investment tainted by corruption; o transfer of funds clauses and
exchange controls - and the practice of forum shopping Premised on
the belief that an investment arbitration regime which is in
listening mode and ready to adapt may draw tremendous strength from
constructive criticism, the questions considered by the
contributors, and relating to the sustainability and future
direction of investment arbitration, demand serious attention from
all stakeholders. The reforms and refinements suggested promise to
bring substantial improvements to the present regime and, in so
doing, could reverse the current trend towards a backlash. All
stakeholders in investment arbitration will welcome and learn from
this work.
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