Emerging powers in international dispute settlement: From legal capacity building to a level playing field?

Abstract

International dispute settlement is often described as a developed country dominated area of legal practice where developing country disputants seek to build legal capacity to level the playing field. The rise of emerging powers challenges this view, but it remains conceptually unclear when emancipation occurs and playing field is levelled. This article assesses China, India and Brazil's participation in trade and investment dispute settlement against two theoreticallyderived 'basic' requirements for emancipation: that they have a domestic constituency with legal skills and expertise required for participation, and that they can strategically use the system in place beyond individual cases and proactively advance their policy agendas. This article finds that emerging powers have built domestic expertise within their governments, but foreign lawyers remain crucial for their engagement. The countries engage in legal strategizing in the trade case, but there are political barriers to investment arbitration in Brazil and India. Level playing field debates should take into account levelling in the private sector and examine the disputants' ability to navigate complex webs of trade and investment governance.