On genealogy of proposals to reform investor-state arbitration

Ghouri, A (2014) On genealogy of proposals to reform investor-state arbitration. TDM, 11 (1). pp. 1-11. ISSN 1875-4120

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Abstract

Investor-State arbitration cases involving public interest regulation have been understood as struggles between advocates of the free movement of investment capital, such as multinational corporations, and environmental or human rights interest groups. The critical questions have been framed as follows: should the competing values and interests in public interest regulatory disputes be reconciled through investor-State arbitration? Should arbitrators be permitted to incorporate non-investment international norms into investment law and interpret investment treaties by applying international law generally? Is the development of international law better served by States, as representatives of their peoples, determining the balance of protection and costs by concluding consensual agreements through political processes? These are questions of institutional competence and democratic legitimacy, the allocation of decision making authority among States and the various available investor-State arbitration rules and institutions. The manner in which these questions have been addressed in the existing literature suggests a genealogy based on the following three “models” of how public interest issues might be integrated into investor-State arbitration: 1) the contract model; 2) the institutional capacity building model; and 3) the arbitral activist model. The primary argument of this paper is that the first two models, namely the contract model and the institutional capacity building model, eventually fall-back on the third model, namely the arbitral activist model, implicating arbitral activism and necessitating that the investor-State arbitral system develops indigenous principles of systemic self-governance.

Item Type: Article
Keywords: International Investment Law, Investor-State Arbitration
Schools and Departments: School of Law, Politics and Sociology > Law
Subjects: K Law
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Depositing User: Ahmad Ghouri
Date Deposited: 27 Mar 2014 10:28
Last Modified: 07 Mar 2017 10:15
URI: http://sro.sussex.ac.uk/id/eprint/47886

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Project NameSussex Project NumberFunderFunder Ref
ECOHERENCE – Reconciling economic and non-economic values in a multi-polar society269956Academy of FinlandUnset