By: Christy Chidiac
Geopolitical context and international arbitration are intertwined. Contemporary political events illustrate an undeniable retreat of the most developed nations towards protectionism. In reaction to Brexit, many commentators concluded that enforceability of international commercial arbitration awards is safe thanks to the applicability of the New York Convention. Conversely, even if the enforcement of ICSID investment arbitration awards is automatic due to Article 54 of the ICSID Convention, its execution may depend on States willingness to render it efficient through the diverse applicable national laws on immunity from execution. After all, this decision falls within States sovereignty, and at the heart of States decisions, lies public opinion. Public disapproval towards globalization goes hand in hand with the growing mistrust for foreign investment and investment arbitration, as showed by the European protests to the recourse of Investor State mechanism as part of the TTIP or CETA. In this context, arbitration mechanisms are related to globalization and corporation’s governance, hence the fundamental risk is that limitations on arbitration may become popular. As Professor David Caron Caron asserts, State acts to reform the investment treaty regime are a response to, or even a form of, backlash against that regime. Procedural reforms of investment arbitration in the past fifteen years focused on an increase of transparency, including possibilities for public hearings, and publication of arbitral documents. Additional substantive reforms also took place, with more detailed treaties provisions. Moreover, commercial arbitration is not immune from the risk of growing mistrust, as it may adjudicate for illegal activities for instance, under protection of confidentiality. These observations raise questions about the possibility of rendering international arbitration more democratic. Moreover, may public opinion and political context not only affect the transparency but also the efficiency of international arbitration mechanisms? If so, how should the effects of contextual fluctuations on arbitration efficiency be countered? The recent evolution of French legislation illustrates these issues.