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The Rule of Law or the Perception of the Beholder? Why Investment Arbitrators are Under Fire and Trade Adjudicators are Not: A Response to Joost Pauwelyn

Part of: Joost Pauwelyn, “The Rule of Law Without the Rule of Lawyers? Why Investment Arbitrators are from Mars, Trade Adjudicators are from Venus”

Published online by Cambridge University Press:  20 January 2017

Freya Baetens
Freya Baetens*
Affiliation:
Leiden University, National University Singapore (NUS)
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In his thought-provoking and timely article, Pauwelyn asks how it can be “that today’s perception of two parallel processes involving the legalization of world politics, and on two closely related subjects of global economic affairs—cross-border trade and cross-border investment—differs so much?” He focuses on one explanation: the individuals deciding World Trade Organization (WTO) versus International Centre for the Settlement of Investment Disputes (ICSID) disputes.

Type
Symposium on Joost Pauwelyn, “The Rule of Law Without the Rule of Lawyers? Why Investment Arbitrators are from Mars, Trade Adjudicators are from Venus”
Information
AJIL Unbound , Volume 109 , 2015 , pp. 302 - 308
Copyright
Copyright © American Society of International Law 2015

References

1 Pauwelyn, Joost, The Rule of Law Without the Rule of Lawyers? Why Investment Arbitrators are from Mars, Trade Adjudicators from Venus, 109 AJIL 761, 761 (2015)Google Scholar.

2 Organisation for Economic Co-operation and Development, Investment Division, Directorate for Financial and Enterprise Affairs, Investor-Dispute Settlement: Public Consultation: 16 May-9 July 2012, 16 (2012).

3 Caddel, Jeremy & Jensen, Nathan M., Which host country government actors are most often involved in disputes with foreign investors?, Colum. FDI Perspectives No. 120 (2014)Google Scholar.

4 Tietje, Christian & Baetens, Freya, The Impact of Investor-State Dispute Settlement (ISDS) in the Transatlantic Trade and Investment Partnership, para. 83 (2014)Google Scholar.

5 E.g., Salacuse, Jeswald. W., The Emerging Global Regime for Investment, 51 Harv. Int’l L. J., 427, 432 (2010)Google Scholar.

6 E.g., 17,3% of ICSID cases: ICSID, The ICSID Caseload – Statistics (Issue 2016-1) (2016).

7 Johannesson, Louise & Mavroidis, Petros C., Black Cat, White Cat: The Identity of WTO Judges, 49 J. World Trade 49 685 (2015)Google Scholar.

8 Id. at 688.

9 Pauwelyn, supra note 1, at 774.

10 Id. at 779-780.

11 Id. at 781.

12 Posner, Eric A. & de Figueiredo, Miguel F. P., Is the International Court of Justice biased?, 34 J. Legal Stud. 599 (2005)CrossRefGoogle Scholar.

13 Pauwelyn, supra note 1, at 787.

14 Malacrida, Reto, WTO Panel Composition: Searching Far and Wide for Administrators of World Trade Justice, in A History of Law and Lawyers in the GATT/WTO 311, 319 n. 13 (Marceau, Gabrielle ed., 2015)CrossRefGoogle Scholar.

15 Johannesson & Mavroidis, supra note 7, at 693.

16 Pauwelyn, supra note 1, at 794.

17 A quick search showed that of all appeals filed in civil cases in Scotland, England, and the United States, between 10% and 20% succeed so the total number of overturned cases must be well below 10% as not every first instance decision is appealed against.

18 Freya Baetens, Keeping the Status Quo or Embarking on a New Course? Setting Aside, Refusal of Enforcement, Annulment and Appeal, in : Reassertion of Control over the Investment Treaty Regime (Andreas Kulick ed., forthcoming 2016).

19 Pauwelyn, supra note 1, at 795.

20 Id. at 796.

21 Id.

22 Id. at 798.

23 Id. at 799.

24 Investment Policy Hub, Arbitral rules and administering institution, UNCTAD.

25 Pauwelyn, supra note 1, at 799.

26 Id. at 802.

27 Id. at 763.

28 Weiler, J.H.H., The Rule of Lawyers and the Ethos of Diplomats: Reflections on the Internal and External Legitimacy of WTO Dispute Settlement, 35 J. World Trade 191, 207 (2001)CrossRefGoogle Scholar.