Who Wins in International Investment Arbitration Disputes? Evidence from Latin American and Caribbean Countries’ Cases under ICSID

During the nineties, an important group of Latin American and Caribbean (LAC) countries adhered to the International Center for Settlement of Investment Disputes (ICSID) as part of a programme of measures that sought to attract foreign investment to the region. With the aim of exploring the determinants of arbitration outcomes, I use a dataset of 161 concluded disputes until 2019 corresponding to investments in LAC countries, finding evidence on the influence of parties’ characteristics, the subject discussed in cases, and characteristics of the tribunal on the arbitration outcomes. I find that 50% of tribunal decisions have been favourable to either claimant investors or host countries. However, this result may be subject to sample bias if information of settlements and discontinued cases is not taken into consideration. I also find evidence in favour of selection and party capability theories that helps to explain the determinants of international investment arbitration dispute outcomes. In particular, the results reveal that disputes related to direct expropriations have a relatively higher probability of being considered founded by tribunals than other legal controversies. Likewise, the indicators of the relative strength of parties, such as experience in the international arbitration system, have an important influence on tribunal awards. Furthermore, country’s time of experience within ICSID is found to have an important influence on the selection of disputes.

Which Governments Come Out Ahead?

Party capability theory assumes that governments, due to their immense resources and status as repeat players, hold a great advantage over individuals and organizations pursuing litigation in courts. Less known is whether all levels of government enjoy this advantage, how they fare against one another and how an institutional arrangement such as federalism complicates such relationships. These questions are investigated using decisions made by the high courts of Australia, Canada, and the United States. The descriptive findings indicate that institutional arrangements, such as federalism, in some ways, confirm and in others confound traditional notions of which governments come out ahead, which yields important implications for party capability theory, specifically, and federalism, generally.

Who Wins and Who Loses in the Provincial Courts of Appeal? A Statistical Analysis, 1920–1990

Given the visibility and obvious importance of judicial power in the age of the Charter, it is important to develop the conceptual vocabulary for desribing and assessing this power. One such concept that has been applied to the study of appeal courts in the United States and Great Britain is “party capability”, a theory which suggests that different types of litigant will enjoy different levels of success as both appellant and respondent. Using a data base derived from the reported decisions of the provincial courts of appeal for the second and seventh year of each decade since the 1920s, this article applies party capability theory to the performance of the highest courts of the ten provinces; comparisons are attempted across regions and across time periods, as well as with the findings of similar studies of American and British courts.

Party Capability Theory and Appellate Success in the Supreme Court of Canada, 1949–1992

Now that the advent of the Canadian Charter of Rights and Freedoms has made the fact of judicial power so obvious, it is important to develop the conceptual vocabulary for describing and assessing this power. One such concept that has been applied to the study of United States and British appeal courts is the notion of “party capability theory,” which suggests that different types of litigant will enjoy different levels of success, as both appellant and respondent. Using a data base derived from all reported decisions of the Supreme Court of Canada between 1949 and 1992, this article applies party capability theory to the performance of Canada's highest court, and compares the findings with similar studies of American and British courts.