This document outlines a study that uses Q methodology to analyze perspectives on fairness in international investment treaty arbitration. It aims to identify shared value subjectivities within the arbitration community and determine if they form an overlapping consensus that could provide a moral foundation for theories of international law. The document discusses legal theory, Q methodology, controversies around objectivity and subjectivity of values. It presents examples of how values influence the development of customary international law and legal principles.

1. DANIEL BEHN PETER CAMERON JUNE 2011 MELAKU DESTA On the SHARED Subjectivity of VALUE CLAIMS in Legal Discourse: THE APPLICATION OF Q METHOD IN LEGAL ANALYSISan evaluation of EXPECTATIONS ABOUT FAIRNESS AND JUSTICE in THE CONTEXT OF Investment treaty ARBITRATION DISCOURSE

3. Chapter 2 – Legal Theory (an Amalgamation of the Ideas of Lasswell, McDougal, Reisman, Dworkin, Rawls, and Franck

4. Chapter 3 – Q Method and its Discontents

5. Chapter 4 – Fairness in International Law

6. Chapter 5 – The Investment Treaty Revolution

7. Chapter 6 – The Q Method Study on Fairness Expectations in Investment Treaty Arbitration

9. Law is a branch of morality – they are inescapably intertwined. A legal obligation is a moral obligation.

10. There is no knowledge about the existence of value that is objective – in the metaphysical sense (this is a rejection of pure natural law theory and a statement about how knowledge about value is gained).

12. If we when say that objective (universal, physical) knowledge about values is not possible, is subjective knowledge possible – and what would that look like?

14. This is represented not as distinct categories but as a continuum from that which is externally observable to that which is internally unobservable.Logic Fact Rule Law Principle Norm Value Belief Desire Perception Intuition

16. A legal order or law is fair if it reflects a community’s shared expectations about the distribution of values.

17. These shared expectations about value can discovered through the analysis of competing value claims using Q methodology.

19. Q METHODOLOGY Q is a composite of philosophical inquiry, empirical research procedures, and psychometric methods for the examination of human subjectivity. Every person perceives the world differently, and Q uses these subjective viewpoints to construct typologies of different perspectives. PERSPECTIVE C PERSPECTIVE E PERSPECTIVE A PERSPECTIVE B PERSPECTIVE D PERSPECTIVE F

21. Which of these subjective value perspectives are shared?

22. Do any of these shared value subjectivities form an overlapping consensus?

23. How can this knowledge be used in the interpretation and analysis of law (the internal discourse)?

25. ONE MORE EXAMPLE The meaning of investment in the ICSID Convention and BITs have been interpreted in contradictory manners by various ICSID tribunals, creating unpredictability and damaging the level playing field of investors’ protection. Many proponents of unrestricted resort to travaux assume, curiously, that somewhere in the ocean of delegate statements and proposals that have been recorded, one can find not only clear evidence but also the real intention of the parties. The meaning of the term investment may be regarded as “ambiguous or obscure” under Article 32 of the Vienna Convention. We do believe that it is fanciful to think that answers to textual obscurity or clear indicators of a proper interpretation can be found in travaux. Persistent divergences among groups of tribunals and arbitrators on crucial questions of investment law have led some to challenge the system’s capacity to generate any kind of certainty at all. Given the history of the ICSID Convention and a proper respect for state autonomy, tribunals should treat the definition of investment under the Convention as encompassing any plausibly economic activity or asset. It is mythological to pretend that tribunals only review the travauxpreparatoiresonce they first conclude that the term requiring interpretation is ambiguous or obscure. A substantial or significant contribution to the economic development of the host state is a necessary condition in defining investment for purposes of ICSID’s article 25.