Andrea K. Bjorklund

Are Arbitrators (Judicial) Activists

When judges are described as activists they are usually accused of either intruding into policy making best left to the legislative branches of government or intruding into values or social mores – matters best left to democratic processes, i.e. to “the people”. For an arbitrator to be an activist she would need to go beyond her duly conferred quasi-judicial powers, and arbitrators – and in particular investment arbitrators – have been accused of doing just that. Though there is a fine line between what constitutes activity and what constitutes activism, I suggest that arbitrators are not generally “activists.” First, they wield authority conferred on them by the arbitral agreement and by other sources of arbitral power. Second, particularly when the applicable legal standard is vague, this conferral includes quite broad authority to define and develop the applicable law. Third, the lack of agreement among states about what certain obligations mean suggests that arbitral tribunals are not going beyond their authority; rather, the fault, if fault there is, lies in the language of the agreements themselves.

Breaking the Market Dominance of ICSID? An Assessment of the Likelihood of Institutional Competition, Especially from Asia, in the Near Future

This chapter examines the possibility of the emergence of an alternative centre for investment arbitration—a very much debated, if not favoured, option in Asian policy circles—from a law and economics angle, conceptualizing investment arbitration in market terms. We argue that, given the current market dominance of the International Centre for Settlement of Investment Disputes (ICSID), the emergence of competition from Asia or from somewhere else should be constrained by network externalities (what is known as network effects in the literature). Network effects arise where the implicit value of a service (or product) increases as the number of other agents using the same service grows. As more users use the service and its utility is enhanced, additional consumers flock to the service, and on it goes, creating a positive feedback loop.

BG Group and 'Conditions' to Arbitral Jurisdiction

Although the Supreme Court has over the last decade generated a robust body of arbitration caselaw, its first decision in the area of investment arbitration under a Bilateral Investment Treaty was only handed down in 2014. BG Group v. Argentina was widely anticipated and has attracted much notice, and general approval, on the part of the arbitration community. In this paper we assess the Court’s decision from two different perspectives -- the first attempts to situate it in the discourse of the American law of commercial arbitration; the second considers it in light of the expectations of the international community surrounding the proper construction of Conventions between states. Our initial goal had been to write jointly, with the hope that we could bridge our differences to find, if not common, at least neighboring, ground. On some points we did so, but ultimately our divergent appreciations of the proper way to interpret the condition precedent in the investment treaty in BG Group overcame the idealism with which we commenced the project. Nonetheless we have decided to present the two papers together to emphasize the dichotomous approaches to treaty interpretation that two moderately sensible people, who inhabit overlapping but non-congruent interpretive communities, can have.

Soft Codification of International Investment Law

This important book examines the development of soft law instruments in international investment law and the feasibility of a ‘codification’ of the present state of this field of international economic law.

Assessing the Effectiveness of Soft Law Instruments in International Investment Law

This important book examines the development of soft law instruments in international investment law and the feasibility of a ‘codification’ of the present state of this field of international economic law.

Introduction: The ILA Study Group on the Role of Soft Law Instruments in International Investment Law

This important book examines the development of soft law instruments in international investment law and the feasibility of a ‘codification’ of the present state of this field of international economic law.