A1 Journal article – refereed
On Genealogy of Proposals to Reform Investor-State Arbitration

List of Authors: Ghouri Ahmad
Publisher: Transnational Dispute Management
Place: The Netherlands; USA
Publication year: 2014
Journal: Transnational Dispute Management
Journal acronym: TDM
Issue number: 1


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; the institutional capacity building model; and 3) the arbitral activist model. 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. The following sections 1 and 2 formulate an outline of this argument. Section 3 introduces the arbitral activist model and the theoretical bases on which investor-State arbitral tribunals can develop indigenous principles of self-governance in order to incorporate public interest in the system. A preliminary sketch of the possible roadmap for the formulation of such indigenous principles follows in the final section 4.

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Last updated on 2019-21-08 at 20:59