Collective Action in Investment Arbitration to Enforce Small Claims Justice to the Deprived or Death Knell for the System of Investor-State Arbitration?

Abstract

This paper deals with whether collective action can be a way to seek justice for small investors or would rather be the “straw that breaks the camel’s back” and damage the system of investment arbitration. The author, first of all, points out the challenges faced by small claimants in bringing an investment arbitration claim against a State, which mostly concern the costs of investment arbitration. With respect to those obstacles, the author then introduces some methods to overcome such challenges, including collective action. Finally, the author suggests that the system of investment arbitration will be robust enough to deal with collective action and may find its own tools to make the system fair and workable. Meanwhile, the author simply does not follow the skepticism with respect to the future of investment arbitration, keeping in mind that mechanisms declared dead by the pessimists often live considerably longer.