A Soft Competition Among Arbitral Institutions: The institutional oligopoly of mixed arbitration.

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dc.contributor.advisorVan Harten, Gus
dc.contributor.authorSchaugg, Lukas
dc.date.accessioned2024-03-18T18:12:04Z
dc.date.available2024-03-18T18:12:04Z
dc.date.issued2024-03-16
dc.date.updated2024-03-16T10:52:35Z
dc.degree.disciplineLaw
dc.degree.levelDoctoral
dc.degree.namePhD - Doctor of Philosophy
dc.description.abstractArbitral institutions play a vital role beyond merely facilitating international arbitration between private parties and states; they actively shape international legal norms and influence global governance. Despite their strategic and policy-shaping role, scholarship on arbitral institutions remains limited mostly to doctrinal analyses of their procedural functions. Addressing this gap, this thesis presents a comparative case study, exploring the influence of four dominant arbitral institutions and their leading experts on the development and evolution of mixed arbitration. The study combines insider research and work in the archives of inter- and non-governmental organizations, states, and influential individuals. It also draws on numerous leaked diplomatic cables. The thesis finds that the institutional market for treaty-based mixed arbitration constitutes an oligopoly of four institutions. Rather than from free market competition, this oligopoly emerged from a combination of factors, including brokering by international bureaucrats and arbitration experts during critical junctures, followed by subsequent path-dependent developments. This dynamic is historically embedded in the emergence of administered forms of contract-based mixed arbitration, which set the scene for the arrival of ICSID and the proliferation of treaty-based cases. While ICSID’s arrival marks a significant milestone, other institutions thrived in lesser but still vital ways, leveraging factors such as the timing of state accessions to the ICSID Convention, geopolitical dynamics during the Cold War, the introduction of the UNCITRAL Arbitration Rules, new treaty provisions offering a forum choice, and lobbying by influential experts who possessed ‘the right visibility at the right time’. The study contributes to several strands of scholarship, including on the political economy of the investment treaty regime, the growing judicialization of international law, and the role of non-state actors in international relations. It also represents the first comparative case study of non-doctrinal aspects of arbitral institutions with a focus on mixed arbitration.
dc.identifier.urihttps://hdl.handle.net/10315/41929
dc.languageen
dc.rightsAuthor owns copyright, except where explicitly noted. Please contact the author directly with licensing requests.
dc.subject.keywordsArbitration
dc.subject.keywordsCommercial arbitration
dc.subject.keywordsInternational arbitration
dc.subject.keywordsInvestment arbitration
dc.subject.keywordsInvestor-state arbitration
dc.subject.keywordsInvestor-state dispute settlement
dc.subject.keywordsAlternative dispute resolution
dc.subject.keywordsInvestment law
dc.subject.keywordsInvestment treaty regime
dc.subject.keywordsInternational law
dc.subject.keywordsInternational relations
dc.subject.keywordsLaw and economics
dc.subject.keywordsHistorical institutionalism
dc.subject.keywordsOligopoly theory
dc.subject.keywordsImperfect competition
dc.subject.keywordsInternational organization
dc.subject.keywordsInternational political economy
dc.titleA Soft Competition Among Arbitral Institutions: The institutional oligopoly of mixed arbitration.
dc.typeElectronic Thesis or Dissertation

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