The more things change, the more some stay the same. This article first highlights renewed concerns about delays and, especially, costs in international commercial arbitration (ICA). Many now urge quite radical solutions to make ICA more efficient, including allowing parties to authorize arbitrators to facilitate settlement (Arb–Med). At the same time, there are growing calls for more transparency, non–party participation, and other rule changes to promote the legitimacy of the burgeoning field of investor–state arbitration (ISA). Such reforms are justified by the greater variety of public interests involved in ISA, despite some possible losses in efficiency. We should resist a tendency simply to extend the solutions devised or proposed for ICA, particularly in the form of Rules of arbitral institutions, to contemporary ISA.However, some reforms incorporating proper safeguards may also be advisable in both fields, such as Arb–Med processes, or arbitrator remuneration providing better incentives to streamline proceedings. Many reforms can be implemented by institutions devising tailored ISA Rules, to be added as options for investors in bilateral or regional investment treaties or Free Trade Agreements (FTAs). Our article therefore proposes a variety of improvements. These are based on comparisons of the main Rules adopted for ISA (ICSID and the UNCITRAL Rules), the arbitration Rules of institutions like the Australian Centre for International Commercial Arbitration (ACICA) and the Japan Commercial Arbitration Association ( JCAA), and some of the provisions already found in Australia’s FTAs or governing trade disputes under the World Trade Organization (WTO) system. Hopefully, these improvements will enable ISA to keep developing through bilateral initiatives such as the proposed Australia–Japan FTA, emerging regional initiatives, and ultimately a new multilateral framework for investment. Although reforms are currently needed to bolster the legitimacy of ISA, longer–term reforms may instead re–emphasize efficiency, rather like ICA has done after decades spent achieving global acceptance.
Journal of International Arbitration