Thursday, May 3, 2012

Arbitration and Jurisprudence in the Investment Treaty Regime

I'm not a true believer in tax treaty arbitration because I have read some of the literature on investment treaty arbitration that grapples with the many of jurisprudential issues we seem to be all but ignoring in tax.  Susan Franck's latest paper, Managing Expectations: Beyond Formal Adjudication, is a case in point.  It uses the "guidance and clarity on standards" gleaned from arbitration decisions to talk about the jurisprudence of the investment treaty regime, an approach that would be impossible in the international tax regime arbitration structure.  Here is the abstract:
The international investment system has depended heavily on international arbitration to provide guidance and clarification on the standards contained in international investment agreements. In order to assess the system realistically, this commentary discusses unpacking stakeholder expectations by recognizing where expectations may have been overly optimistic and thinking systematically about the mechanisms through which to capture and manage regulatory discretion. This article evaluates ideas expressed by Anne van Aaken and Bart Legum, which consider different ways to achieve regulatory and commercial balance, and offers a lens for thinking systematically about managing stakeholder expectations in the international investment system. A critical issue for international investment law relates to cognitive psychology and how to manage the expectations of differently situated stakeholders. This commentary explores different methods to managing stakeholder expectations and investment treaty conflict such as education and different doctrinal opportunities such as administrative law's model of formal and informal rule-making and adjudication. This commentary concludes that an evidence-based nuanced analysis allows consideration of specific dynamics about stakeholder objectives, enabling a more realistic assessment of the international investment regime.

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