The ICSID in Perspective
Published 3 October 2012
Introduction
This article evaluates the criticisms leveled at the ICSID in five particular respects. Firstly, it considers the perceived bias of the ICSID towards wealthy Western states and their investors as an ideological and normative proposition. Secondly, it evaluates the extent to which the processes of the ICSID incorporate this perceived bias into its institutional mechanisms. Thirdly, it considers whether ICSID arbitration is a viable alternative to domestic courts resolving investment disputes between states and foreign investors. Fourthly, it proposes ways in which the ICSID can become more transparent as a mechanism for resolving investment disputes in the face of criticism that it suffers from ideological, structural and functional myopia. Fifthly, it reflects on dispute avoidance alternatives to both arbitration and national courts in resolving investment disputes.
A contrite and diffident defense of the ICSID is that its problems can be ascribed to the complexity of multiple layers of investment law, that many of these layers are outside of its control and that the ICSID has attempted to redress those complexities that are within its control. The purpose of this article is not to identify heroes and villains in investment law and practice, but to resolve real conflicts with real human, social and political potency. In this respect, ICSID arbitration is one among other means of resolving such conflicts. It is not an end in itself; nor should it be so construed.
Footnotes omitted from this introduction.