Daniel Behn

Queen Mary, University of London | QMUL · Centre for Commercial Law Studies

Concern with the selection and appointment of arbitrators has been central in the ‘legitimacy crisis’ surrounding investor–state dispute settlement (ISDS). The regime has been criticized for the outsized role of litigating parties in appointment, absence of transparency in the appointment procedure, potential for conflicts of interests, lack of div...

International investment arbitration remains one of the most controversial areas of globalisation and international law. This book provides a fresh contribution to the debate by adopting a thoroughly empirical approach. Based on new datasets and a range of quantitative, qualitative and computational methods, the contributors interrogate claims and...

International investment arbitration remains one of the most controversial areas of globalisation and international law. This book provides a fresh contribution to the debate by adopting a thoroughly empirical approach. Based on new datasets and a range of quantitative, qualitative and computational methods, the contributors interrogate claims and...

International investment arbitration remains one of the most controversial areas of globalisation and international law. This book provides a fresh contribution to the debate by adopting a thoroughly empirical approach. Based on new datasets and a range of quantitative, qualitative and computational methods, the contributors interrogate claims and...

International investment arbitration remains one of the most controversial areas of globalisation and international law. This book provides a fresh contribution to the debate by adopting a thoroughly empirical approach. Based on new datasets and a range of quantitative, qualitative and computational methods, the contributors interrogate claims and...

International investment arbitration remains one of the most controversial areas of globalisation and international law. This book provides a fresh contribution to the debate by adopting a thoroughly empirical approach. Based on new datasets and a range of quantitative, qualitative and computational methods, the contributors interrogate claims and...

International investment arbitration remains one of the most controversial areas of globalisation and international law. This book provides a fresh contribution to the debate by adopting a thoroughly empirical approach. Based on new datasets and a range of quantitative, qualitative and computational methods, the contributors interrogate claims and...

International investment arbitration remains one of the most controversial areas of globalisation and international law. This book provides a fresh contribution to the debate by adopting a thoroughly empirical approach. Based on new datasets and a range of quantitative, qualitative and computational methods, the contributors interrogate claims and...

International investment arbitration remains one of the most controversial areas of globalisation and international law. This book provides a fresh contribution to the debate by adopting a thoroughly empirical approach. Based on new datasets and a range of quantitative, qualitative and computational methods, the contributors interrogate claims and...

Monetary damages is the ordinary remedy in investor-state dispute settlement (ISDS). As such, arbitral practice relating to damages has direct, practical relevance for states and investors. The size of damages awards is also amongst the core critiques of ISDS. It is somewhat surprising, then, that the issue of damages has not figured prominently in...

The relationship between the concepts of international investment law and global public goods poses two essential challenges. The first is whether the international investment regime by design is a global public good. The second is whether the regime delivers benefits that are public and global in nature. This chapter addresses these two challenges...

The post-Cold War era has seen an unprecedented move towards more legalization in international cooperation and a growth of third-party dispute settlement systems. WTO panels, the Appellate Body and investor-state dispute settlement cases have received increasing attention beyond the core trade and investment constituencies within governments. Scru...

Force majeure and hardship provide legal tools to deal with the effect of unexpected future events and unforeseen changes in circumstances, particularly in long-term contracts. Given its global and unprecedented dimensions, its lethal potential and its drastic effects on international contracts the COVID-19 pandemic will generate years, if not deca...

Adjudicating Trade and Investment Disputes - edited by Szilárd Gáspár-Szilágyi July 2020

Adjudicating Trade and Investment Disputes - edited by Szilárd Gáspár-Szilágyi July 2020

The United Nations Commission on International Trade Law (UNCITRAL) Working Group III on ISDS (Investor-State Dispute Settlement) Reform considers issues of adjudicator diversity to be an area of concern for the legitimacy of the ISDS system. Studies show that nearly all of the most prominent and repeatedly appointed arbitrators in ISDS cases are m...

Speed is often touted as an advantage of arbitration. In recent years, however, some have worried that investment arbitration risks losing this advantage. Concerns about the length of investor-State dispute settlement (ISDS) proceedings have also been raised in the discussion about ISDS reform. This article analyses the duration of ISDS proceedings...

The ongoing ‘legitimacy crisis’ in investor-State dispute settlement (ISDS) has triggered a comprehensive attempt at multilateral reform. In 2017, Working Group III at the United Nations Commission on International Trade Law (UNCITRAL) was entrusted with a broad, open-ended and problem-driven mandate. The reform process aims to tackle particular co...

Adjudicating Trade and Investment Disputes - edited by Szilárd Gáspár-Szilágyi July 2020

Cambridge Core - Arbitration, Dispute Resolution and Mediation - Adjudicating Trade and Investment Disputes - edited by Szilárd Gáspár-Szilágyi, Daniel Behn, Malcolm Langford

For over a decade, investor-state dispute settlement (ISDS) has suffered a so-called legitimacy crisis. Critics have argued that ISDS is pro-investor, biased against developing countries, beset by incoherent jurisprudence and plagued by a lack of transparency and excessive costs and compensation. While th

Force majeure and hardship provide legal tools to deal with the effect of unexpected future events and unforeseen changes in circumstances, particularly in long-term contracts. Given its global and unprecedented dimensions, its lethal potential and its drastic effects on international contracts the COVID-19 pandemic will generate years, if not deca...

During periods of armed conflict, a State’s treaty commitments may be suspended or replaced by other international legal obligations, often relating to international humanitarian law, the laws of war or international human rights law. However, international investment agreements (IIAs) may be distinct in this respect. A State’s ability to derogate...

Have investment treaty arbitrators responded to the so-called 'legitimacy crisis' that has beleaguered the international investment regime in the past decade? There are strong rational choice and discursive-based reasons for thinking that these adjudicators would be responsive to the prevailing 'stakeholder mood'. However, a competing set of legali...

Is investment treaty arbitration (ITA) tarnished by a bias against developing states? The international investment regime relies heavily on arbitration for the enforcement of its substantive rules but critique has risen as the number of foreign investor claims have stacked up in recent years. Current empirical research is ambiguous in its evaluatio...

It is often claimed that international investment arbitration is marked by a revolving door: individuals act sequentially and even simultaneously as arbitrator, legal counsel, expert witness or tribunal secretary. If this claim is correct it has implications for which individuals possess power and influence within this community; and ethical debate...

Is it time to end the practice of double hatting in international adjudication? In this ESIL Reflection, we examine the practice of double hatting in the specific context of international investment arbitration. We ask three questions: how widespread is the practice; when is it a problem; and what can be done? In doing so, we introduce and develop...

Member States have sought to implement European Union (EU) initiatives on the promotion of renewable energy for almost 20 years. However, some Member States are now finding that some of these very policy initiatives on renewable energy promotion have the capacity to conflict with these same Member States’ other EU and international obligations, suc...

Disputes involving an environmental component continue to be at the forefront of ongoing legitimacy debates in investment treaty arbitration. Critics of the international investment regime contend that arbitration favors the property rights of foreign investors over the need of host states to environmentally regulate and legislate in the public int...

Critics of the international investment regime have claimed that its institution of arbitration is biased against developing states. Others have countered by arguing that any difference in treatment is better explained by the lack of democratic governance in developing states. This paper uses the largest dataset on concluded investment treaty arbit...

States have sought to promote renewable energy generation as a means of meeting international and regional climate change objectives. These very policy initiatives are coming under attack when they might conflict with a state's other international and regional obligations in the areas of international trade and foreign investment protection. Confli...

As with any international legal order, the modern investment treaty regime might serve multiple purposes; but it appears that one purpose stands out as the primary driver for the development and maintenance of the regime as it is currently practiced: providing effective legal remedies to foreign investors in the event a dispute arises in the state...

Member States have sought to implement European Union (EU) initiatives on the promotion of renewable energy for almost 20 years. However, some Member States are now finding that some of these very policy initiatives on renewable energy promotion have the capacity to conflict with these same Member States' other EU and international obligations, suc...

The growth in the signing of international investment agreements (IIAs) in the period 1990 to 2009 can be characterised as an international public policy bubble. Like the rise of privatisation at the domestic level, the expansion of this international treaty regime was arguably premised on an over-estimation of the benefits of protection of foreign...

The development of the modern investment treaty regime represents one of the most remarkable extensions of international law in the post-war period. However, the development of this regime has precipitated a backlash from some states, various civil society actors, and scholars over the past decade. For all intents and purposes, it appears that the...

This article aims at ascertaining the role and relevance of the Unidroit Principles of International Commercial Contracts (PICC) in investment arbitration. The PICC are ‘a non-legislative codification or “restatement” of the law of international commercial contracts in general’ produced by a group of independent academics and experts representing a...

This chapter explores the seemingly divergent legal principles that influence and guide the current energy relationship between Europe and Russia. This relationship is indicative of the co-dependency that has emerged in recent decades between resource-rich and resource-dependent states. In essence, it appears that resource-dependent states tend to...

Dual pricing is a practice that has garnered significant attention recently as either a potentially prohibited export subsidy or an actionable de facto specific subsidy under the WTO. Dual pricing practices by natural resource-endowed countries allow for the domestic price of natural resources to be set significantly lower than export market prices...

For more than a year Iraq's Central Government (ICG) has been attempting to pass its first post-invasion national petroleum law (Oil Law). If passed by the Iraqi Council of Representatives, the Oil Law will provide the legal framework for the future exploitation of Iraq's vast oil wealth. First approved by the Council of Ministers in February 2007,...