The originality of outsiders : innovation in the investment treaty system
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In recent years, several proposals by states to reform or displace investor–state dispute settlement (ISDS) have gained prominence. While many factors shape which reform proposals states support, here we focus on one important but often overlooked factor: the ‘insider’ or ‘outsider’ status of the government officials who formulate states’ proposals. Based on five years of para-ethnographic observation and interviews with officials involved in ISDS reform, and informed by the interdisciplinary innovation literature, we explore how individuals who have not spent their careers within the field of investment arbitration (and are perceived as ‘outsiders’ by those within that field) have developed more disruptive reform proposals while arbitral insiders have typically proposed sustaining reforms. We illuminate these dynamics in the ISDS reform debates with case studies of four actors: the United States, the European Union, Bahrain, and Brazil.
Roberts , A & St John , T 2023 , ' The originality of outsiders : innovation in the investment treaty system ' , European Journal of International Law , vol. 33 , no. 4 , chac065 , pp. 1153-1181 . https://doi.org/10.1093/ejil/chac065
European Journal of International Law
Copyright © The Author(s) 2023. Published by Oxford University Press. This is an Open Access article distributed under the terms of the Creative Commons Attribution-NonCommercial License (https://creativecommons.org/licenses/by-nc/4.0/), which permits non-commercial re-use, distribution, and reproduction in any medium, provided the original work is properly cited. For commercial re-use, please contact firstname.lastname@example.org .
DescriptionFunding: Support for writing this article came from the Norwegian Research Council, Project no. 276009, and the Australian National University Futures Scheme. Funding to follow the UNCITRAL Working Group comes from a capacity-building project funded by the Australian Department of Foreign Affairs and Trade.
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