Divergence between Investment and Commercial Arbitration

By Roberts, Anthea | Proceedings of the Annual Meeting-American Society of International Law, Annual 2012 | Go to article overview

Divergence between Investment and Commercial Arbitration


Roberts, Anthea, Proceedings of the Annual Meeting-American Society of International Law


INTRODUCTION

A central question about the emerging system of international arbitration is whether we are likely to witness growing uniformity and convergence or increasing specialization and divergence. In addressing this question, I am going to focus on the growing divergence between commercial and investment arbitration, which I believe is occurring due to differences in the fields' substantive law and professional communities. In doing so, I will focus on two phases: where we have come from and where we are heading.

WHERE WE HAVE COME FROM

Investment treaty arbitration grafts public international law (as a matter of substance) onto international commercial arbitration (as a matter of procedure). It has also historically married two professional communities, one coming from the world of inter-state dispute resolution and the other from private contractual arbitration. The fact that investment and commercial arbitration involve similar, and sometimes identical, dispute resolution procedures has led many to see them as two sides of the same coin. But the influence of public international law qualifies this approach.

First, investment and commercial arbitration differ in their applicable substantive law. Commercial arbitration is typically characterized by an emphasis on private law, private contracts, and private parties. Even when states take part in commercial arbitration, they are generally understood to be acting in their private capacity. Investment treaty arbitration, by contrast, involves public international law rather than private law, treaties in addition to or instead of contracts, and states acting in their public capacity as sovereigns (which enter into treaties) and regulators (which govern populations).

These substantive differences have, in turn, led to procedural divergences between investment and commercial arbitration. As investment treaties typically have similar provisions and investment awards often become public, investment treaty arbitration has developed a robust system of quasi-precedents, with the citation to and analysis of previous awards becoming a routine feature of investment pleadings and awards. The public interest in investment treaty arbitration has also led to procedural tweaks, such as the publication of many awards and some pleadings, as well as the opening of certain hearings and the participation of amici.

In terms of professional communities, many advocates and arbitrators cross-specialize in investment and commercial arbitration, while others cross-specialize in inter-state dispute resolution and investment arbitration. As the investment treaty field has undergone a process of professionalization, an increasing number of arbitrators have been drawn from private practice rather than from, for instance, the ranks of ex-judges from Western states. However, a significant minority has always come from academia and public international law, much more so than in commercial arbitration.

The profile of arbitrators has important effects on how the investment treaty field is developed because people with different professional backgrounds often approach the system in different ways. While some arbitrators are truly bilingual in public international law and international commercial arbitration, most have a pronounced mother tongue. Although any analysis of the connection between one's background and one's approach involves stereotyping and will be subject to exceptions, some broad trends can be discerned:

* Arbitrators with a background in public international law often focus on the interstate treaty basis of the system; the intention and wishes of the treaty parties; how the system is embedded within a broader framework of public international law; and the importance of individual decisions contributing to a growing body of jurisprudence.

* Arbitrators with a background in international commercial arbitration, by contrast, often focus on the investor-state dispute resolution relationship; the equality and autonomy of the disputing parties; the significance of commercial expectations; and the importance of deciding the particular case rather than contributing to a broader system. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Divergence between Investment and Commercial Arbitration
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.