Dr Mala Sharma

Role of lawyers has been fundamental to the creation, development and reformation of the Investor-State Arbitration (ISA) system. This article conceptualizes the role of private lawyers acting as counsels and arbitrators in ISA as an epistemic community bound together in their shared beliefs about the ISA system and fostering the growth of a common culture of arbitration. As arbitrators and counsels, private lawyers continue to impact the development of ISA by developing substantive principles of international investment law. There is evidence to suggest that international investment law would have developed differently had interpretive discretion been exercised by other individuals than ones who were appointed in a given case. Their role raises a number of important questions: does the participation of ‘elite’ private lawyers with intrinsic financial interest in supporting arbitration affect the legitimacy and credibility of ISA as a dispute resolution process involving public-policy stakes? If yes, how should the system of ISA be reformed and whether the ongoing reforms at the ICSID and UNCITRAL adequate? This article explores the power-sharing between individual lawyers who belong to the profession of arbitration and (host and home) States and the implications and spill-over effects of private power in public realm in the ISA context.

There is a pervasive sense of tension between investor-State arbitration (ISA) and international climate change law. Both fields use different rationalities and evolved through completely different treaty systems. The tensions between the regimes are evident in the practice of ISA tribunals that hardly engage in analyses of States’ climate obligations. To mitigate this, this article proposes that climate aspirations must be integrated at various levels of the ISA regime by different players and at various stages. While States can contribute to this by drafting investment treaties better; arbitrators can reconcile the tensions by using pro-climate interpretative mechanisms; arbitration institutes can formulate procedural rules embedding third party participation and allowing counterclaims in ISA. Counsels and disputing parties can adopt best practices in managing arbitrations in a sustainable way, use climate and net zero aligned clauses and empower the arbitration tribunal to interpret and modify applicable law to align it to climate objectives.

This article explores the role of arbitration institutions in system-building and argues that arbitration institutions by replicating each other’s rules, facilitating growth of a common culture of arbitration and strategically cooperating with each other act as important agents in making arbitration a truly international system. Arbitration institutions impact international arbitration in a fundamental way, i.e., despite lacking a formal system of precedent, cross-institutional convergence of rules by replication underpinned by a shared culture of arbitration increases the chances of similar outcomes in procedural disputes with similar facts as borrowing of interpretations across institutions become easier. This can eventually lead to the creation of ‘uniform global rules of arbitration practice’ in the future. Though convergence across institutional rules has its merits, it may also undermine the benefits of diversity. Further research is required to understand the role of arbitration institutions as system-builders and how cross-institutional convergence of rules will impact the evolution of international arbitration – for example, will adoption of similar arbitration rules to harness the power of technology, systemically transform the way lawyers arbitrate disputes in the future?

Mandatory arbitration is facing a backlash in the United States of America. Recently proposed legislations are geared to severely restrict the scope of mandatory arbitration in consumer disputes. This Article proposes the creation of a new hybrid ombudsman scheme on the lines of the Financial Ombudsman Service found in the UK for resolving consumer disputes in the US. The multi-tier alternative dispute resolution system integrating mediation, recommended settlements and adjudications adopted by the FOS internally and the unique position it enjoys in relation to various actors such as the regulators, courts, industry and consumers within the dispute resolution framework enables it to not only act as a grievance addressal point but also as an agent of change. It is about time unfair mandatory arbitration is replaced with fair alternatives such as a hybrid ombudsman scheme.

China’s Belt and Road Initiative (BRI) as a geoeconomic vision and geopolitical strategy is closely watched and scrutinised by Indian economists, diplomats, and strategists. Perspectives on India’s approach to the BRI can broadly be classified into three—the optimist, the sceptic and the cautionary. Whereas, economists generally appear optimistic, there is a sense of uneasiness within India’s strategic community that the BRI represents much more than China’s ambition to emerge as an economic leader in the region. This article argues that India’s approach to the BRI has largely been pragmatic, cautious and complex. Accordingly, India has taken an atomistic approach to the various components of the BRI depending on its security and economic needs, which explains why on the one hand India has become increasingly receptive of the Bangladesh-China-India-Myanmar Economic Corridor (BCIM EC) and on the other continues to publicly oppose the China-Pakistan Economic Corridor (CPEC).