Judicial economy and moving bars in international investment arbitration

Abstract

Historically, international investment law has centered on protecting foreign investors from direct expropriation, but much of modern law includes legal standards that allow investors to win compensation for other kinds of investor-state disputes. A prominent criticism among scholars and policy advocates is that modern legal protections allow investors to pursue increasing numbers of frivolous, low-merit cases. We contend that this claim overlooks the impact of judicial economy and changing legal standards: since foreign investors only need to prove a main legal violation to secure compensation, arbitrators can and do rule only on those standards that are most easily proven, in particular, contemporary legal protections. As a result, measures based on legal claims and rulings cannot provide definitive evidence of merit, and fears about trends in frivolous litigation under international investment law may be overstated.