Jason Webb Yackee’s thoughtful article, Controlling the International Investment Law Agency, is an important contribution to a growing literature on the question of the legitimacy of the international investment law (IIL) system, and, in particular, investor-state arbitration, which is largely the focus of his article. Rather than taking a for-or-against position on the IIL system in its present form, Professor Yackee proposes that we accept the system as it exists and analogize it “to a domestic-law administrative agency in which significant policymaking authority is transferred from political organs to expert decisionmakers who are charged” to effect “the promotion and protection of foreign investment.” In viewing the IIL system through this lens, Professor Yackee argues that the system’s major weakness—“the lack of sufficient mechanisms of state political control”—is laid bare, and that the state can, in his view, be reinserted to “sit at the top of the decisional hierarchy” through application of administrative-law principles. The state is “re-stated” (my word, not his) at the center of the IIL system by recognizing that the system is a political one that needs political checks, and those checks are provided by states. In Professor Yackee’s view, principles of administrative law point the way to a partial solution—“the adaptation of notice-and-comment and legislative veto concepts to the dispute resolution process.” The idea is that viewing the IIL system through the lens of administrative-law agency provides a potential solution to the question at the heart of the system itself: what role should the state play in IIL, especially in the investor-state context?
In this response, I do three things. First, I examine whether there is a problem with the IIL system that needs an administrative-law solution. Second, I explore whether the analogy to administrative law helps solve the putative problem. Third, I offer some concluding thoughts to encourage the consideration of more than state interests in evaluating the IIL system.
