In Chapter 2, I draw from pragmatist philosophy and relational sociology to develop a new theory of normativity and institutional change. I propose the concept of a normative configuration as an alternative to the concept of a norm, defined as an arrangement of ongoing, interacting practices establishing action-specific regulation, value-orientation, and avenues of contestation. I argue that situated creativity, problem-solving, and the institutionalisation of action establish normativity within enduring social arrangements. This alternative conception helps clarify the origins of normativity in situations where existing IR theory is limiting, as I show through a review of scholarship on norms drawn both from the field of IR and from the social sciences and humanities more broadly. To develop this new concept, I draw heavily from the work of John Dewey, Hans Joas, and the insights of practice theorists.

In Chapter 4, I investigate the emergence and evolution of the USA’s targeted killing programme, focusing mainly on its origins within the CIA and its transformation from a limited, ad hoc method to a systematic and institutionalised form of militarised counterterrorism. I question whether it represents the erosion of international and domestic prohibitions on assassination and find that it does not; those prohibitions continue to exist and play a normative role in shaping how force is used, but they have changed in content – they refer to something different than before. Central to this process were legal arguments and bureaucratic politics designed to adjust the delegation of authorities across the agencies of the US security apparatus, facilitated by the development of armed unmanned aerial vehicles, which supplied an essential means, and by pressure from the Bush and Obama administrations.

Any assessment of the international investment regime and its legitimacy crisis requires a preliminary understanding of their important and relevant features. However, the sprawling nature of both defies most doctrinal and qualitative attempts at description. The regime is based on a decentralized network of legal instruments, different procedural mechanisms and ad hoc proceedings, while the accompanying chorus of critique and counter-critique is populated with multiple actors and interests across the world. This chapter seeks to capture this distinct and fragmented universe. First, the authors map consent to arbitration, not on a generic per signed bilateral investment treaty basis, but rather by tracking multilateral, bilateral and unilateral consents in force. Second, they provide a description and overview of the over 1,100 registered cases up to January 2020, focusing inter alia on case outcomes, rules, cases types, institution, parties, economic sector and legal basis. Third, they trace discontent with regime, charting the origin of legitimacy crisis and its maturing over time. It ends by discussing both state-led efforts at reform and the extent to which arbitrators themselves have adjusted reflexively to the backlash.

In Chapter 5, I investigate the emergence, institutionalisation, and cessation of the US use of torture during interrogation, in the form of ‘Enhanced Interrogation Techniques’ developed for the CIA’s detention and interrogation programme. I question whether this represents the erosion of international and domestic prohibitions on torture and find that it does not; they too continue to exist, but temporarily transformed, before reverting back to their earlier form. This process occurred because the CIA developed a new ‘science’ of interrogation and placed it at the centre of new institutional capacities to detain and interrogate ‘high-value’ prisoners, which they justified on the basis of its scientific validity and efficacy. Their legal and scientific arguments revolved around distinguishing their activities from torture, which they never claimed was appropriate but also never admitted to using. As these justifications increasingly failed, the use of EITs stopped and was again prohibited.

A key response to legitimacy concerns over investment arbitration has been to point to the contribution of investment treaties to significant increases in in-bound foreign investment. The authors return to this vexed question of whether treaties offer material benefits and the large literature on the topic. Through a mixed methods approach and heightened awareness of the synergies and tensions within and between methodological approaches, they: (1) analyse econometrically the impact of ISDS provisions on inbound FDI; (2) present new qualitative research on investor and host state practices and attitudes; and (3) argue that social psychological research on cultural risk cognition is useful for both framing and presenting research questions and findings. They conclude that whatever the results that emerge from empirical research findings, the form of presentation will determine whether they will be accepted by the public or fall victim to growing polarization in perceptions and positions.

The lack of geographic diversity among arbitrators is a common critique of investor–state dispute settlement. This has emerged as a major legitimacy problem as 80% of ISDS cases are against non-Western respondent states. In this chapter, the authors map the existing level of diversity with new methods (tracking both nationality and residence) and examine whether greater diversity would make a difference in outcomes. The descriptive statistics reveal that only a third of arbitral appointments have gone to non-Western individuals, and that this falls to 25% when residence is taken into account. However, the issue becomes more complicated when examining the effect on outcomes. The regression analysis indicates that the absence of geographic representativeness can favour Western home and host states, especially when the Chair is from the West. However, possibly due to a high degree of institutionalization and socialization of arbitrators in the system, it does not appear at present that arbitrator nationality has a significant effect on outcomes.

The interaction of developing states with investment treaty law and arbitration constitutes an important part of the ongoing debate about the legitimacy of the investment treaty regime. However, the authors contend that the concern is often sidelined and that developing states and their concerns are frequently lumped together under the broader rubric of investment treaty law as a threat to national sovereignty and a constraint on regulatory autonomy. By focusing on the formal equality between contracting state parties and the reciprocal nature of international investment agreements (IIAs), the chapter contends that such narratives tend to mask the presence of power disparities, which considerably shape the involvement of developing states in the creation, diffusion and internalization of investment treaty law. The authors seek to counter these narratives by drawing on new empirical data to expose a range of structural, normative and institutional power inequalities. By using the optics of power and focusing on how developing states learn from and internalize investment treaty law, the chapter peers behind the formal structures of investment treaties and ISDS to identify the underlying processes and actors and to question the legitimacy of the prevailing norms and institutional arrangements.

It is often claimed that investment arbitration is used as a means of last resort that occurs as a response to the realization of two types of shock towards foreign investors – one from severely dysfunctional governance at the national level and the other from an economic crisis. With an original dataset that includes investment claims filed under the rules of all arbitration institutions as well as ad hoc arbitrations, the authors test links between governance, economic crises and investment arbitration. They find that poor governance, understood as corruption and lack of rule of law, has a statistically significant relation with investment arbitration claims, but economic crises do not when considered separately. Yet, bad governance and economic crises considered together are a good predictor of when countries will get hit by investment arbitration claims. Their findings are of great significance to important questions regarding outcome legitimacy, in particular whether ISDS produces legitimate outcomes if used to redress or mitigate severe governance deficiencies, and whether its use in the context of economic crises hurts countries in great difficulty and thereby undermines efforts to arrive at mutually satisfactory solutions.

Challenges to investment arbitrators are increasingly common. Using data from different arbitral institutions up to 2019, this chapter traces a remarkable upsurge in the number of arbitrator challenges from 2010 to the present. On the one hand, many challenges may be of a purely tactical character, designed by the parties – typically the respondent state – to delay proceedings or pressure a party to settle or withdraw a complaint. On the other hand, many arbitrators may be legitimately vulnerable to challenges; and the increase in number may suggest that the system is (or should be) taking more seriously concerns such as repeat appointments by the same party, double hatting, and issue conflicts. The author argues that arbitrator challenges may contribute to the legitimacy of the adjudicative process. They ensure that independence and impartiality is maintained in practice and signal to prospective arbitrators and their appointers the risks of non-disclosure or certain types of appointments.