Note: Please email me (email@example.com) if you would like to attend the course. Knowing the approximate number of participants will help me to further plan the seminar.
Over 3,000 international investment agreements (IIAs) provide legal protection to foreign investors. The most important component of these treaties is the dispute settlement mechanism: IIAs allow private investors to sue host states before international arbitration and claim damages for breaches of international investment law.
This course introduces to investment treaty arbitration (ITA) and is designed to conduct small independent research projects on the topic. In recent years, ITA has become a matter of controversy in the context of critical debates about globalization. First, critics claim that multinational corporations use the system to challenge state regulation and stop political measures that are detrimental to their business interests. For example, Germany was sued by the Swedish energy company Vattenfall in the course of the German nuclear phase-out. The tribunal awarded damages of 1.4 billion euros. Disputes like these and resulting concerns that arbitration poses a threat to democracy and the rule of law are the substantive ground of the ITA critique. Second, many criticize ITA on procedural ground. Arbitral tribunals are not permanent courts, but are constituted ad-hoc in the event of a claim by a foreign investor. The disputing parties, i.e. the investor and the state, appoint the members of the tribunal, and critical observers question the independence and impartiality of party-appointed arbitrators. In addition, the tribunals often meet behind closed-doors, their decisions are binding and subject to very limited appeal. In light of these substantive and procedural concerns, it is common today to speak of a legitimacy crisis of ITA.
This course is designed as a block seminar. In a first preparatory meeting (14 October), I will introduce the concept of the course in more detail and give a brief overview of the main features and development of the international investment treaty regime. This will be followed by a period of self-study in which you will read selected texts on investment arbitration and develop ideas for your own small research project. The block dates on 2 and 3 December are divided into two main parts. On Day 1, we will discuss basic theoretical arguments. We look at two standard explanations for the creation of the ITA system (depoliticization; credible commitment device to attract FDI) and aim to critically discuss these theories. Day 2 is designed as a workshop, where you are asked to present the basic idea of your research project and discuss the other research projects. I will present potential topics for the research projects in the first session. Possible topics include:
- ITA from the perspective of developing countries
- ITA and environmental protection
- ITA and human rights
- Specific culture of arbitrators
- ITA from a Gender perspective
Within these topics, your task is to find your own research question and develop a research design. However, you are also free to work on a completely different topic. You can then develop your mini-research project into a term paper.
Studienleistung: Short presentation of your own research idea and discussion of the research idea of another student.
Prüfungsleistung: According to the examination regulations; usually a term paper (Hausarbeit).
Bonnitcha, Jonathan, Lauge N. Skovgaard Poulsen, and Michael Waibel. 2017. the political economy of the investment treaty regime. New York: Oxford University Press.
Moehlecke, Carolina/Wellhausen, Rachel L. (2022): Political Risk and International Investment Law, in: Annual Review of Political Science 25: 485-507.