This event is co-sponsored by the Centre for International Governance and Justice (RegNet, CAP) and the Centre for International and Public Law (CoL). The presentation will be delivered in-person only.
It has been long presumed that full compliance with decisions in investor-state dispute settlement (ISDS) was the norm given reputational benefits for states and a strong enforcement architecture. However, new empirical evidence suggests that ISDS is little different from other international courts and tribunals (ICTs), where partial and delayed compliance is common. Moreover, investors and states engage in various post-award actions from unorthodox settlement arrangements to sale of the awards and tactical litigation that do not fit standard narratives of compliance behaviour.
In this article, we argue that the regularity of deficient compliance and unorthodox post-award dynamics should spur a re-thinking of compliance. We argue that it can be reconceptualised from an idealised process of ‘enforcing fixed obligations’ to a practice of ‘post-decision bargaining’, and researched accordingly. In this analytical framework, ISDS awards become distributional ‘focal points’ for an ongoing series of moves and countermoves, concessions, and counterproposals as parties search for mutually tolerable outcomes. In doing so, we build on the idea of ‘compliance bargaining’ but seek to expand its analytical, empirical, and legal reach. We also explore avenues for future research compliance processes in ISDS, and potentially beyond. This requires new ways of thinking about how we measure, explain, and evaluate compliance.
About the speaker
Malcolm Langford is a Professor of Public Law, University of Oslo and Director of the Centre on Experiential Legal Learning (CELL), a Centre for Excellence in Education (SFU). He is also an Adjunct Professor of Law, University of Bergen and is currently on sabbatical at the Gilbert + Tobin Centre on Public Law, UNSW Sydney. His work spans international law, comparative constitutionalism, human rights, and technology and the law, and he has won several international prizes for his work on international investment arbitration. He is the Co-Editor of the Cambridge University Book Series on Globalization and Human Rights and was previously the Co-Director of the Centre on Law and Social Transformation, CMI and University of Bergen (2014-2021) and Chairperson of the Academic Forum for Investor-State Dispute Settlement (ISDS) (2019-2021), which assists the UNCITRAL investment arbitration reform process.
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