Private Litigation in a Public Law Sphere: The Standard of Review in Investor-State Arbitrations

Abstract

Over the last twenty years, the incidence of investor-state arbitrations, starting from a few odd cases per year, has grown to a sizable and steady flow of up to forty-some new cases annually, With a cumulative total of at least 317 pending or decided cases as of the end of 2008-most of them before International Centre for Settlement of Investment Disputes (ICSID) arbitral tribunals constituted under the ICSID Convention -international investment arbitration has become "a part of the 'normal' investment landscape." The growth in investor-state arbitrations has been fostered by the explosion in the number of bilateral investment treaties (BITs) during the same time period, which numbered a staggering 2676 treaties at the end of 2008. Many of these treaties contain provisions not only about the settlement of traditional interstate disputes, but also about procedures through which investors claiming to have been harmed by measures allegedly in violation of an applicable BIT provision can initiate arbitrations directly against the investment host state. It is on the basis of such dispute settlement provisions contained in BITs that most investor-state arbitrations are being initiated.