TWAIL and the Dabhol Arbitration

Abstract

The article draws on the theoretical perspective of Third World Approaches to International Law (TWAIL) in order to review a case study in international investment arbitration. From the arbitration proceedings in the International Chamber of Commerce, which arose from controversies regarding the Dabhol project in India, three inferences are drawn. First, it demonstrates how investment contract arbitrators may approach their role as going beyond the usual remit of commercial arbitration that is rooted in an autonomous agreement between the contracting parties. In this case, the arbitration was recast as a mechanism for wide-ranging review of government policies and judicial pronouncements associated with Third World interests. Second, the arbitration offers reasons to suspect regime bias, as discussed in the TWAIL literature, based on the institutional make-up of the tribunal and the content of its final award. Third, the arbitration formed part of a wider conflict between Western and Third World interests that implicated courts and tribunals in the U.S., the U.K., and India. With respect to TWAIL itself, it is suggested that the perspective provides a useful reference for organizing a critique. However, it is less relevant for the identification of specific options for reform in international arbitration or strategies to encourage, manage, or regulate investment for social ends. In this respect, TWAIL might benefit from the incorporation of more applied and technical study alongside its guiding principles and framework for critique.