Treating countries like businesses

  • November 7, 2013
Treating countries like businesses

Todd Tucker will be speaking about the power of arbitrators at a conference this week on international investment arbitration.

Arbitrators in international investment cases play a huge role in creating law and steering state behaviour, according to research by a Gates Cambridge Scholar which will be presented at an international conference this week.

Todd Tucker will be presenting his research on International Investment Arbitration at a World Trade Institute conference in Bern on Friday.

It shows that, unlike in other settings  where judges help interpret and institutionalise legal concepts initially set in motion by politicians and intellectuals, investment arbitrators help generate it from the start.

IIA is a treaty-like instrument between two or more nations that marries substantive investor protections with the procedural right of investors of one party to sue the government of one of the other parties.

Tucker’s paper seeks to establish what norms arbitrators create about states and how. It shows arbitrators both in tribunals that rule against and in favour of states use a mix of assertive ‘stating’ and relative ‘positioning’ modes and of ‘affirming’ and ‘disciplinary’ tenors when creating norms about states. In fact, Tucker says tribunals that sided with states appeared drawn to states that behaved more like private companies.

His analysis demonstrates that investment merit awards contain competing notions of strong and constrained states, and that arbitrators may be helping create a discourse that normalises greater state restraint and that favours states which act more like businesses than states.

Tucker [2012], who is doing a PhD in Development Studies, said: “When executive branch officials get sued in their own courts, they defend the case in front of judges that are officials of the same system of government. These judges defer to their executive branch officials, who tend to win many more cases than they lose. In contrast, investment arbitrators stand outside of the state system altogether. While governments still win slightly more arbitration cases than they lose, investment arbitrators’ language shows that they are willing and able to pass harsh judgment on government actions in a way that we’re less likely to see at the domestic level.”

Picture credit: suphakit73 and www.freedigitalphotos.net

Latest News

Affecting change for the Māori community

Self-determination lies at the centre of Māori culture. “It’s a way of life,” says Chris Tooley. That idea is also at the heart of his PhD studies at Cambridge and his subsequent work in Parliament and in the community. Chris grew up with a strong sense of being part of the Māori community. He has ancestral […]

On the COVID frontline

Three Gates Cambridge scholars who have been on the medical frontline during the COVID-19 pandemic will be speaking about their experiences at a virtual event next weekend. The event, organised by the Gates Cambridge Alumni Association, will be moderated by Elizabeth Dzeng, Assistant Professor of Medicine at the University of California, San Francisco in the […]

New game tackles Covid conspiracies

A new online game that puts players in the shoes of a purveyor of fake pandemic news is the latest tactic in the UK Government’s efforts to tackle the deluge of coronavirus misinformation that is misleading many and costing lives across the world. Launched to the public today, the Go Viral! game has been developed by the […]

“Democracy does not work on a ‘trust me’ basis”

When Jennifer Gibson started her MPhil at Cambridge in 2001 as part of the inaugural class of Gates Scholars, no-one knew what it meant to be a Gates Cambridge Scholar. Twenty years later, Jennifer is now a human rights lawyer focused on national security issues, something she never could have anticipated, but which she credits in no small part […]