Hosna Sheikhattar’s research while affiliated with Loyola Law School and other places

The involvement of foreign investors in domestic insolvency proceedings has raised complex and controversial issues in investment treaty arbitration, both procedurally and substantively. Among the most disputed procedural questions is the legal standing and ability of insolvent foreign investors to access investment treaty arbitration. Arbitral tribunals have generally leaned towards ensuring access for insolvent foreign investors to arbitration. Moreover, several arbitral awards have examined substantive issues related to investment treaty protection standards in the context of domestic insolvency proceedings. On the one hand, insolvency administrators or judicial authorities may cause the host state to violate its investment treaty obligations due to irregularities or unfair practices in the bankruptcy process. On the other hand, actions by state organs outside the judiciary could invoke state responsibility under investment treaties if their wrongful conduct caused the insolvency of the foreign investor’s company. Thus, states can be held responsible for breaches of investment treaties in matters related to insolvency.

Economic sanctions are powerful tools of global politics, yet they often have adverse effects on individuals and companies involved in business activities with sanctioned parties or those implicated by sanctions. This chapter will analyze the impact of sanctions on cross-border transactions between private parties and the resolution of their disputes in international commercial arbitration. Specifically, it will examine private international law aspects of sanction-related disputes that arise in international commercial arbitration, including the arbitrability of disputes, the arbitral tribunal’s application of sanction legislation to the subject matter of the dispute, and the enforcement of arbitral awards.

Despite the increasingly diversified discourses in international commercial arbitration, this device of socio-legal regulation remains a relatively under-theorized subject. In particular, far too little attention has been paid to analyzing international commercial arbitration through critical approaches such as Third World Approaches to International Law (TWAIL). TWAIL is broadly understood as a methodological reorientation in international law by highlighting the historical links between the foundations of this field of law and the history of capitalism and imperialism as well as the colonial and Eurocentric legacies in the structure and operation of the current international legal regime. With this in mind, two fronts in international commercial arbitration invite a reexamination through a TWAIL perspective and by drawing on the concept of hegemony. One front is the transnational account of arbitration, and the other one is the epistemic community of arbitration. By examining these two notions through a narrative of hegemony of Western legal traditions, we posit that any effective attempt at redefining or reforming arbitral governance structure towards sustaining diversity requires a deeper understanding of historical and current world power structures and creating a vision for the prospect of dehegemonization.