“ISDS,” as many of you may know, stands for “Investor-State Dispute Settlement,” and refers to the current system of ad hoc arbitration that foreign investors and host States use to resolve their investment disputes. Because the system is ad hoc—in other words, the disputing parties pick the arbitrators and the arbitrators decide only the case before them—it has come under increasing attack. Critics say that the one-off approach produces inconsistent results across similar cases and encourages arbitrators to act self-interestedly in search of their next appointment.
When it came to almost any emerging issue in international law, Professor Caron was at the forefront and, in many cases, had already written about it. We saw this with issues ranging from the minimum standard of treatment in Glamis Gold v. United States of America, in which he served as arbitrator, to the effects of rising sea levels on baselines, on which he published in the 1990s before the issue was at the forefront of discussions.
The theme of Berkeley Law’s September 2018 Symposium honoring the memory of Professor David Caron was “The Elegance of International Law.” This intriguing theme was taken from David’s opening address, entitled “Confronting Complexity, Valuing Elegance,” at the Annual Meeting of the American Society of International Law in April 2012. His address opens with an analysis, drawing on a daunting array of sources and disciplines, probing the challenging notion of complexity.
The view that participation by the respondent state enhances the perceived legitimacy of international judicial or arbitral proceedings may play a significant role in a decision not to participate. Such a decision may be prompted by political rather than legal considerations. The object of nonparticipation may be to facilitate exercise of a political option of noncompliance with the judgment or award, notwithstanding prior agreement that it is legally binding.