It’s not the Cases, It’s the System

Abstract

M. Sornarajah’s recent analysis of investment arbitration as an offshoot of ‘neoliberalism’ is basically correct. But it attaches too much importance to the bias of the arbitrators and the procedural problems in arbitral practice. The controversy over the Trans-Pacific Partnership (TPP), the Transatlantic Trade and Investment Partnership (TTIP) and investment arbitration generally is not about the niceties of arbitral procedure, the discretion of arbitrators or the pros and cons of the European Union proposed ‘investment court’. The significance of investment arbitration has to do with the many ways in which already the very presence of a ‘dis-embedded’ and one-sided system of claims automatically skews public policies in favour of foreign investors. The juristic debate is but the surface of struggle over the role of public power and democratic governance of domestic and global economy.