With the blossoming of empirical legal scholarship, there is an increased appreciation for the insights it offers issues of international importance. One area that can benefit from such enquiry is the resolution of disputes from investment treaties, which affects international relations, implicates international legality of domestic government conduct, and puts millions of taxpayer dollars at risk. While suggesting there has been a “litigation explosion,” commentators make untested assertions about investment treaty disputes. Little empirical work transparently explores this area, however. As the first analysis that explains its methodology and results, this article is a modest attempt to evaluate claims about investment treaty arbitration. The article explores: (1) who and what is arbitrated, (2) increases in awards, (3) win/loss rates, (4) amounts claimed and awarded, (5) arbitration costs, (6) use of other dispute resolution processes, and (7) nationality and gender of arbitrators. Subjecting these areas to empirical scrutiny provides information that sets the stage for future research to provide insights to government officials responsible for negotiating investment treaties and parties planning their dispute resolution strategies. Ultimately, it offers factual information – grounded in a valid and reliable process – stakeholders can use when evaluating the legitimacy of a dispute resolution process with profound public implications.
The feminist issues discussed include the gender imbalance among international arbitrators. The piece includes a graph that illustrates the number of tribunals that included a woman versus the number of all-male tribunals, and notes that only 3% of the arbitrators in the population studied were women. Download it here.
