Mass Procedures as a Form of "Regulatory Arbitration" - Abaclat v. Argentine Republic and the International Investment Regime
Abstract
This Article takes a unique and intriguing look at the issues presented by Abaclat, considering the legitimacy of mass procedures from a regulatory perspective and using new governance theory to determine whether a new form of regulatory arbitration is currently being developed. In so doing, the discussion describes the basic parameters of regulatory litigation and analyzes the special problems that arise when regulatory litigation is used in the transnational context, then transfers those concepts into the arbitral realm. This sort of analysis, which is entirely novel as a matter of either public or private law, will shape future inquiries regarding the propriety of both treaty-based arbitration and contract-based arbitration, including domestic forms of class arbitration.