Originally From World Arbitration and Mediation Review (WAMR)

I. INTRODUCTION

A lot of attention in international investment law is directed towards developments in treaty-making and recent arbitral jurisprudence. Arguments as to the future of international investment law and arbitration mostly focus on how the traditional sources of law – i.e., bi- or multilateral treaties – should evolve. Making changes to both substantive investment law and investor-State arbitration is the preferred path of investment law reform and promises to counter the wide-spread, albeit not universally shared, criticism of the entire system.

What is, however, often neglected in this context is that some of the most pressing concerns in international investment law and arbitration are not addressed, and perhaps do not need to be addressed, through changes in treaty practice, but through more oblique or “softer” normative means. There are currently several areas where soft law instruments can and arguably do play an important role. These include, but are not limited to, corporate social responsibility and the question of obligations of foreign investors; transparency and third-party participation in investor-State arbitration; the relation of investment protection to competing rights and interests, including the link between international investment law and other branches of public international law; and predictability and consistency of arbitral jurisprudence.