(Re)Calibration, Standard-Setting and the Shaping of Investment Law and Arbitration

Abstract

Calibrating or (re)calibrating investment law and arbitration—depending on whether the exercise takes place for the first or a subsequent time—is different from rebalancing investment law and arbitration. A balancing exercise denotes a situation in which different elements are equal or in the correct proportions to maintain a sort of equilibrium. This Essay argues that investment law and arbitration are not necessarily about creating a situation in which all “elements” are in balance and that (re)calibrating is an interesting starting point for a discussion about the contemporary regime of investment law and arbitration, and especially to explore, understand, or visualize the current and future developments in the field. The central questions in this Essay include determining what the standards are and who sets them. This Essay examines (re)calibration and looks at the process from the vantage point of the standards which are used for such (re)calibration and evaluates how the standards have evolved substantially over the years and how new treaties—in an exercise of (re)calibration—are in fact following or adapting to these new standards.