Critical Comparisons: The Role of Comparative Law in Investment Treaty Arbitration

Article excerpt

A rose is a rose is an onion Ernest Hemingway, For Whom the Bell Tolls (1940)

Both comparativists and internationalists have mostly neglected the interaction between international law and comparative law. While "[i]nternationalists seem comfortable with power and uncomfortable with culture ... comparativists are eager for cultural understanding and wary of involvement with governance. " (1) However, this attitude is gradually changing, as comparativists and internationalists have increasingly acknowledged that they "share more than they realize." (2) This article aims to scrutinize the interplay between international investment law and comparative law. This interaction has four different but related dimensions: comparative investment law, comparative arbitration law, legal doctrine, and treaty interpretation. While authors have extensively studied comparative investment law and comparative arbitration law, which study the different national legislations regulating foreign investment and the arbitral process, investment law scholarship and arbitral tribunals' use of comparative law has received scarce, if any, attention.

While the use of comparative legal reasoning in investment law jurisprudence and legal scholarship seems to offer concrete solutions to emerging conceptual dilemmas and reputed scholars have forcefully argued in favor of it, one may question whether a more critical approach to the use of comparative law should be adopted. It is often assumed that comparative law is a neutral process, but this is not always the case. Problems of perspective are a central element in the comparative law discourse. This study focuses on the interplay between international investment law and comparative law and proposes the adoption of a critical method. Not only would such awareness limit eventual abuses of the comparative method, but it would also favour the coherence of the international legal system as a whole.

I. INTRODUCTION

Not many fields of law use comparative law as extensively as international arbitration. International arbitration is a method for settling transnational disputes, involving parties and adjudicators of different nationalities, and requiring the application of different sets of procedural and substantive norms. For its intrinsic characteristics, international arbitration constitutes the Walhalla for comparative law experts, and indeed, an eminent arbitrator, Professor Pierre Lalive, has recently recognized that "the main duty of the international arbitrator is to be open to other cultures" and that "[i]n order for international arbitrators to avoid culture clashes, universities should start training law students much more in international and comparative law." (3) In a previous study he affirmed that "an international arbitration should be decided by a truly 'international' arbitrator, i.e. someone who is more than a national lawyer, someone who is internationally-minded, trained in comparative law and inclined to adopt a comparative and truly 'international outlook.'" (4)

While many comparative lawyers have therefore analyzed international arbitration through comparative law lenses, (5) investment treaty arbitration has received scarce if any attention. This neglect may be due to several interlinked reasons. First, investment-treaty arbitration is often associated with international arbitration. Second, the boom of investment disputes has only a very recent pedigree. Consequently, only recently have authors analyzed the phenomenon of investment treaty arbitration. Third, given the relative scarcity of legal doctrine, it is logical that comparative law scholars have not had the necessary inputs to start scrutinizing this particular area of public international law.

However, some have highlighted the distinction between investment treaty arbitration and international commercial arbitration. (6) While international arbitration generally involves private parties and concerns disputes of a commercial nature, investment treaty arbitration involves states and private actors. …