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Unpacking the Complexities of Backlash and Identifying its Unintended Consequences

Published on August 25, 2016        Author: 

References to “backlash” are becoming increasingly ubiquitous in international law scholarship (see for example this recent EJIL article and accompanying EJIL:Talk! Discussion). Few have, however, sought to define or unpack the complexities of backlash. In this post, we draw upon our chapter in a forthcoming book titled The Judicialization of International Law – A Mixed Blessing? (Oxford University Press, 2017). We seek to develop a notion of “backlash”, identify what underlies it, and illuminate its potential unintended consequences. While we focus upon investment treaty arbitration as a case study, we endeavor to illuminate the complexities of evaluating opposition to international regimes. These issues hold particular relevance to investor-State arbitration given current State negotiations of major bi‑ and multi‑ lateral treaties with investor-State protections. They are also likely to gain in relevance with many investment treaties shortly coming up for renewal or termination.

Defining Backlash

The notion of backlash has seldom been defined, instead being used as an umbrella term to capture a range of forms of critique and contestation. These include State decisions to review, not renew, terminate, or withdraw from existing treaties; refusals to negotiate or sign investment treaties; and changes in the approaches of States to the negotiation of new treaties. There are also forms of “backlash” arising from civil society, non-governmental organizations, and academia in the form of protests, comments in public consultation processes, increased reporting, and academic discussion. Such acts, along with others, are increasingly cited as evidence of “a rising backlash” against the regime of investor-State arbitration generally.

The term “backlash” indicates the presence of something more than scrutiny, critique or even crisis. Read the rest of this entry…