Re-(de-)Politicization of International Arbitration: The Evolution of Principles and Procedural Institutions

Until only recently, it was considered a competitive advantage of international arbitration that it was depoliticized, resistant to the influence of the public policy of individual states, even the states of the seat of arbitration, beholden solely to the will of the parties, strictly confidential, and adversarial in nature. But this advantage has gradually turned to weakness. While the protection of human rights and antitrust regulation have naturally moved from public law to private arbitration, the fight against corruption, the political interests of states, including national security, ecology, and tax regulation, have become a real challenge. The classic paradigm of international arbitration has been completely undermined by sanctions and trade wars and the European Union’s crusade against arbitration clauses in intra-EU investment protection treaties. The idea can now be heard more often that to retain influence, arbitration must become more court-like and live up to its responsibilities to the parties and to the rule of law. International discussion around these issues looks less like a full-fledged dialogue than an investigation of positions. The global community of arbitrators is in no hurry to swear in the new arbitral order as states see it. UNCITRAL Working Group III continues to discuss the reform of investment arbitration, but there is still much to do before final decisions are made. What awaits international arbitration? Should it consider political factors? If it does, will it manage to preserve procedural flexibility and attract global business?