Articles on the
Reform Process

Is the investment treaty system more like a mechanical watch, in which you can pull out one part, repair it, then put it back together and know how it will work?

Or is it more like an old forest or other ecosystem with lots of plants and animals and fungi interacting, so if you take out one part or add in a new part, you cannot necessarily predict what will happen?

We think officials often see the investment treaty system as more like an ecosystem – it evolved over time rather than being consciously designed – which means that figuring out how to intervene in it most effectively can be hard and it is not easy or even possible to predict what will happen in response to interventions. We observed officials focusing on interactions, and how interactions lead to both unpredictability and emergent patterns. It was striking to us how often their language echoes descriptions of complex adaptive systems, so we turned to complexity theory to make sense of what we observed.

Complexity theory is particularly helpful for asking ‘how’ questions. It captures the question we see negotiators asking themselves at UNCITRAL: given my state’s reform goals, how can I intervene in the investment treaty system most effectively?

And when officials, like the officials we observe at UNCITRAL, believe that they are operating in an existing system that is full of interconnections that generate unpredictability and emergent patterns, what strategies are available to them to manage or shape the evolution of the system? We can also ask a more general version of this question: how do actors undertake institutional design in complex systems? And how should we conceptualize these actors who seek to redesign while keenly aware that they are operating within an existing complex adaptive system?

We conceptualize UNCITRAL participants as complex designers: actors who see themselves operating within a complex system yet still seek to (re)design it. To explain the role of complex designers, we pick up on two of the metaphors used by participants at UNCITRAL: architecture and gardening.

UNCITRAL participants often see themselves as architects, and talk about the ‘international architecture’ that they are building. These officials, like architects, see themselves with a rare opportunity to design new structures by drawing up blueprints. We call that engaging in episodic design. They are also designing for someone, for future users. Designs both shape and are shaped by their users in a coevolutionary manner. The structures that architects design can influence the identity and behaviour of users, but users may also ignore or work around structures they find problematic.

UNCITRAL participants also invoke gardening metaphors, speaking about whether they should work on reforms that would permit an early harvest or are ripe for picking. The imagery of gardening draws our attention to the importance of environmental fit. These officials have a keen sense of what their domestic political environment can and cannot sustain and what the domestic political environments of others can and cannot sustain. The imagery of gardening also draws our attention to the reality that working with or against the environment is a continuing process. We call this adaptive management.

Procedurally, architects remind us of the centrality of episodic design, while substantively they aim at designing structures with adaptive users in mind. Substantively, gardeners focus on the exigency of environmental fit, while procedurally they remind us of the need for continuous calibration through adaptive management.

Most complex designers combine elements of both architecture and gardening, but the balance between the two can shift over time or by context.

We argue that there is a coherence and logic underlying officials’ approach – they have adopted an evolutionary and experimental approach to reform. Evolutionary modes of change take place when several different versions of a rule or procedure appear, then some versions are selected and replicated but not others. Experimentation is necessary for evolution. We also develop three emergent design principles that we see as key to the approach: flexible structures, balanced content, and adaptive management processes.