Document Type

Article

Publication Date

2024

Abstract

Current efforts to reform international investment law focus in large part on the impact of investor-State dispute settlement (ISDS) on the regulatory power of the sovereign State. At the core of the reform debate is the ability of foreign investors, as claimants in investment treaty arbitrations, to challenge the laws and regulations of the host State as part of dispute resolution. Modern investment treaties seek to safeguard the State’s right to regulate, but also impose obligations on foreign investors and promote responsible business conduct. Yet, beyond the name and nationality as alleged in arbitration filings, very little is known about the claimants themselves. Who are the primary beneficiaries and users of international investment law and dispute resolution? Are they predominantly large multinational corporations as it is commonly perceived? Are there any individuals able to bring claims in ISDS? Do they relate to one another? These and many other questions remain largely open. Answering these questions will inform and guide sovereign States and international organizations as the debate about the possible reform of ISDS continues. This Article seeks to fill the existing void by providing empirical data on claimants—companies and individuals—that have brought investment treaty arbitration claims in International Centre for Settlement of Investment Disputes (ICSID) arbitrations from January 1, 2010, to December 31, 2019. It further analyzes the data on claimants and investment arbitrations to better understand how investor protection treaties affect the flows and structure of foreign investments and decisions by companies and individuals to bring claims in ISDS. In doing so, it seeks to contribute to our understanding of the functioning of the international investment regime and whether it achieves its goal of increasing the flow of foreign investments into the host State’s economy. The Article concludes by reconciling the goals of investor protection with the collected empirical data on claimants in ISDS and offers normative prescriptions for investment treaty- making.

Publication Title

Berkeley Journal of International Law

Volume

42

First Page

1

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