Backlash to Arbitration: Three Causes

There are at least three reasons for the current backlash among developing countries against the international regime that governs disputes between foreign investors and host governments. First is the inconsistency of the decisions rendered by arbitration panels established under bilateral investment treaties, investment provisions of regional trade agreements, clauses in investment contracts, and, occasionally, provisions of host countries' investment laws. Second, and perhaps most important, is the very rigid view of contracts that panels have tended to take, even when a host country acts as a result of an economic crisis. A third cause of backlash is closely related to the second: the seeming insensitivity of arbitration panels to signals that corruption or incompetency might have been involved in the original negotiations or subsequent renegotiations of agreements that gave rise to disputes. There are other reasons for reaction, but they pose less threat to the existing system.

Although the ideal solution would be a multilateral agreement, past efforts to conclude one suggest that reaching agreement is unlikely in the near future. Building an appellate process, providing for symmetry in access to arbitration, and mid-point guidance might go some distance toward reducing the backlash.