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The backlash against investment arbitration : perceptions and reality
Autor: Michael Waibel
Rok: 2010
ISBN: 9789041132024
OKCZID: 110944546
Citace (dle ČSN ISO 690):
WAIBEL, Michael, ed. The backlash against investment arbitration: perceptions and reality. Austin: Wolters Kluwer, 2010. liv, 614 s. Kluwer law international.
Anotace
One may debate whether the tremors of a systemic crisis in investment arbitration are real, and, if so, of a great enough magnitude to shake its foundations, but it is no longer possible to deny that the current system is coming under intensive scrutiny. International lawyers, who recognize the indispensability of a well-functioning system for settling investment disputes, should be concerned about enhancing the legitimacy and functionality of investment arbitration. A well-calibrated response to the challenges facing investment arbitration is essential to ensuring its long-term future.Critics must be answered; inquiries made; reassessments undertaken. If crucial questions continue to be ignored, or simply glossed over, the strength of, and consequences flowing from, the backlash are likely to be greater in scale. This book, which grew out of a conference held at Harvard Law School in April 2008, aims to uncover the concerns driving the backlash against the present international investment regime.Thirty-one contributors academics, practitioners, government officials and representatives of civil society analyze both the current state and future direction of the international investment regime, and offer valuable insights into possible ways of improving the system. The concerns fuelling the backlash, and addressed in this book, include: Shrinking of domestic policy spaceCompetitive pressures to sign investment treaties as a reason why increased investment flows may prove elusive Inflexibility of treaty obligations and lack of coordinated responses to changing circumstances, especially in financial crisesRenegotiation and termination of bilateral investment treatiesLack of democratic accountability and pro-investor biasPervasive secrecy and confidentiality of arbitral proceedingsConflicts of interest and the continuing quest for effective rules governing the conduct of arbitrator and counselReassessment of the traditionally perceived advantages of arbitration, such as speed, low cost, and neutralityThe extent of protection afforded to shareholders in connection with denial of benefits clausesThird parties as representatives of the public interest or advocates for organized private interestsRelationship between EU law and BITsRestrictions on international arbitration in constitutional lawInvestment tainted by corruptionTransfer of funds clauses and exchange controlsAnd the practice of forum shopping. Premised on the belief that an investment arbitration regime which is in listening mode and ready to adapt may draw tremendous strength from constructive criticism, the questions considered by the contributors, and relating to the sustainability and future direction of investment arbitration, demand serious attention from all stakeholders. The reforms and refinements suggested promise to bring substantial improvements to the present regime and, in so doing, could reverse the current trend towards a backlash. All stakeholders in investment arbitration will welcome and learn from this work.