Clash of paradigms: Actors and analogies shaping the investment treaty system

Investment treaty arbitration "is not a subgenre of an existing discipline. It is dramatically different from anything previously known in the international sphere."198 As with the platypus, the investment treaty system may come to be seen as sui generis: something that defines its own category.199 But its identity will have been forged in large part by comparisons being drawn between it and other legal disciplines. By identifying multiple paradigms and exposing the assumptions underlying them, I hope to make those engaged in the field more self-conscious about their own approaches and open to seeing the system through different lenses. This ground-clearing exercise lays the foundation for two types of normative arguments. The first is the development of metatheories abouthowthe existing investment treaty system should be understood. This article takes as its premise that the system is platypus-like in nature, with different lenses focusing on different aspects of the beast. This approach paves the way for theories about the systeḿs sui generis nature, which will likely draw on insights from multiple paradigms instead of endorsing any single one. The second is the development of arguments about how the future system should be reformed to become more like one paradigm and less like another. The existing system may be a platypus, but one can still argue that it should be transfigured into some other animal altogether by excising certain features (such as ad hoc arbitration) or adding others (such as an appellate body).