Development or Democracy? Explaining Outcomes in Investment Treaty Arbitration

The international regime for investment: a history of failed multilateralism

“…21, 25). 10 The numbers diverge from UNCTAD's official statistics because they are based on the PluriCourts Investment Treaty Adjudication (PITAD) database, in which we have found more cases than UNCTAD (Behn, Berge, & Langford, 2016).…”

“…16 See Dezalay and Garth (1998) for a review of how international commercial arbitration rose to prominence, and what role individual arbitrators have played, and play, in the development of this transnational legal order. 17 Arbitrators have for example been found to side with foreign investors more often than developing countries in the interpretation of contestable terms in BITs (van Harten, 2012), but Behn et al (2016) suggest that ITA is not skewed in favour of investors. If skewed at all, it is rather in favour of rich respondent countries.…”

Biased Arbitrators and Tribunal Decisions Against Developing Countries: Stylized Facts on Investor-State Dispute Settlement

“…This ratio is higher than for cases against states with high per‐capita income (not shown in the figure), which is in line with Behn et al . () who find that developing countries are more likely to lose in arbitration than high‐income countries. However, the observation that the ratio is still below one is in conflict with the impression in public debate that tribunal decisions are mostly in favour of private investors.…”

“…Indeed, Behn et al . (: 1) find that ‘poorer states remain vastly more likely to lose in arbitration than wealthier states’.…”

Winning or losing in investor‐to‐state dispute resolution: The role of arbitrator bias and experience

“…In other words, ISDS is suspected to systematically favor investors over respondent states. Respondent states with relatively low per‐capita income and poor governance are expected to be in a particularly weak position when multinational corporations bring alleged breaches of commitments made in international investment treaties to “private” arbitration—see Behn, Langford, and Berge () for a discussion of the economic development bias hypothesis . Behn et al () themselves find a pro‐developed state rather than an anti‐developing state bias in their analysis and also find that if poorer states on average lose cases this is because such states often have poor governance, which is the more important predictor of losing the case than their development status.…”