Investment Treaty Arbitration

This chapter challenges investment treaty arbitration at its core by questioning the validity of insistence on special routes for access to justice reserved to remediate the grievances of a class of privileged investors, which can be referred to as ‘justice bubbles’. Despite the potential of the ongoing reform initiatives to genuinely improve the existing investment treaty arbitration model, salvaging and strengthening these justice bubbles that serve the needs of the privileged few sustains and even makes permanent the prioritization of institutions of justice for foreign investors over the improvement of local institutions that could provide justice for members across society, including foreign investors. However, no institutional process used or proposed for settling international investment law disputes is perfect, and each process is ‘imperfect in different ways given the dynamics of participation within them’. Thus, the challenge in this chapter is directed towards the singling out of high-value investment disputes as deserving special treatment above and beyond any institutional options available to any other private party aggrieved by governmental abuse. The chapter then argues that the establishment of a permanent investment court is a short-sighted solution to deficiencies in local access to justice, which is likely to undermine domestic legal developments.