Investing in the Future
Crises of institutional legitimacy and outcomes define the modern International Centre for the Settlement of Investment Dispute’s (ICSID) existence. This work will model an ICSID that resolves these crises. Three main organizational changes are necessary to do so. The first is the incorporation of representatives. Numerous studies espouse the positive effects on institutional legitimacy and outcomes that incorporating representatives generates. The second is through the incorporation of procedural representation: the act of regularly changing an institution’s procedures relative to what the parties involved hold as legitimate at a given time. This process will additionally add procedural legitimacy to the ICSID, thereby increasing its stability, longevity, and influence. The third major change is with regard to its judicial philosophy. While the current ICSID adopts a modernizationist frame of analysis, the model will advocate for a world-systems perspective, and argue that the ICSID should pursue a reality where those in closest proximity to an investment, rather than absentee multinational corporations, have primary control over relevant capital. The world-systems frame, as a judicial philosophy, will have the ICSID involve representatives in each of its four phases: pretrial matters, tribunal, verdict determination, and award allocation, as well as in two new phases: procedure determination, a phase that occurs before pretrial matters where the ICSID will adopt the procedures it will use in a following case, and performance evaluation, a phase that occurs after award allocation where representatives from communities evaluate the impact the ICSID has on their communities and ensure that it is positive. Organizational bureaucrats - referred to as facilitators - will guide representatives throughout this process, ensuring that their input is heard and used, that the ICSID gains more legitimacy, and that material realities around the world are improved in the process.