The Great Asymmetry and the Rule of Law in International Investment Arbitration

2017 ◽  
Author(s):  
Alessandra Arcuri
Keyword(s):  
Rule Of Law ◽  
International Investment ◽  
The Rule Of Law ◽  
Investment Arbitration

scholarly journals Counterclaims and the Rule of Law in Investment Arbitration

AJIL Unbound ◽  
2019 ◽  
Vol 113 ◽  
pp. 33-37 ◽  
Author(s):  
Tomoko Ishikawa
Keyword(s):  
Rule Of Law ◽  
International Investment ◽  
Access To Justice ◽  
Foreign Investors ◽  
The Rule Of Law ◽  
International Investment Law ◽  
Rule By Law ◽  
Investment Arbitration ◽  
The Law ◽  
Broad Interpretation

While the rule of law was originally developed with reference to domestic constitutional orders, it is also widely embraced by international lawyers. This essay argues that the admission of counterclaims in certain circumstances helps investment arbitration advance the rule of law on several counts. The rule of law is defined here to include not only formal elements such as rule-by-law and formal legality, but also “thicker” elements attached to certain substantive values, including fundamental human rights. The UN's work on the rule of law clearly adopts a broad interpretation of this concept. This essay examines the potential for counterclaims to bridge the gap between the lack of effective mechanisms to hold foreign investors accountable for their conduct and the extensive protection of foreign investors in international investment law. By doing so, counterclaims in investment arbitration may promote the thicker elements of the rule of law such as accountability to the law, access to justice, and fairness in the application of the law.

International Investment Law in the Context of Jus Post Bellum: Are Investment Treaties Likely to Facilitate or Hinder the Transition to Peace?

2015 ◽  
Vol 16 (4) ◽  
pp. 604-632 ◽  
Author(s):  
Jure Zrilič
Keyword(s):  
Rule Of Law ◽  
International Investment ◽  
The Rule Of Law ◽  
International Investment Law ◽  
Jus Post Bellum ◽  
Post Conflict ◽  
Investment Arbitration ◽  
Sustainable Peace ◽  
Investment Law ◽  
Investment Treaties

This article seeks to explore how international investment treaties interact with the transition from armed conflict to peace. While the protection of foreign investors in conflict and post-conflict environments is a necessary requirement for re-establishing the rule of law and attracting new capital that is needed for rebuilding the wrecked economy, the threat of excessive arbitration claims may also complicate the delicate process of creating a stable political order. The article compares traditional, government-to-government methods of settling post-conflict international claims with investor-state arbitration. Unlike investors, governments will usually base their decision about raising a conflict-related claim on a number of extra-legal considerations, such as conditions for sustainable peace. These considerations will often reflect in the amount and the method of payment of post-conflict compensation. The article looks at the investment arbitration practice and identifies certain interpretive tools that take better account of post-conflict realities and lead to more balanced awards.

scholarly journals Indeterminacy, Ideology and Legitimacy in International Investment Arbitration: Controlling International Private Networks of Legal Governance?

2021 ◽  
Author(s):  
Juan J. Garcia Blesa
Keyword(s):  
Rule Of Law ◽  
International Investment ◽  
The Rule Of Law ◽  
The Past ◽  
Investment Arbitration ◽  
Investment Law ◽  
Traditional Approaches ◽  
Legitimacy Crisis ◽  
Broad Consensus

AbstractThis article connects the insights of post-realist scholarship about radical indeterminacy and its consequences for the legitimacy of adjudication to the current legitimacy crisis of the international investment regime. In the past few years, numerous studies have exposed serious shortcomings in investment law and arbitration including procedural problems and the substantive asymmetry of the rights protected. These criticisms have prompted a broad consensus in favor of amending the international investment regime and multiple reform proposals have appeared that appeal to the rule of law ideal as an instrument for increasing the acceptability of the international investment system. This article argues that the reliance of such proposals on jurisprudential approaches that fail to adequately accommodate the post-realist indeterminacy critique and take seriously the role of ideology in adjudication renders reform efforts unable to solve the legitimacy problems of the investment regime. The conclusions suggest the need to abandon implausible claims to depoliticization and face the methodological challenges posed by the promise of ideologically balanced assessments advanced by some rule of law theorists. The article finally points at the urgency to reform traditional approaches to doctrinal work in order to increase awareness of critical challenges and open up doctrinal methods to alternative methodological avenues.

scholarly journals Fair and Equitable Treatment Between the International and National Rule of Law

2019 ◽  
Vol 20 (4) ◽  
pp. 513-552 ◽  
Author(s):  
Velimir Živković
Keyword(s):  
Decision Making ◽  
Rule Of Law ◽  
International Investment ◽  
The Rule Of Law ◽  
International Investment Law ◽  
Investment Protection ◽  
National Rule ◽  
Fair And Equitable Treatment ◽  
Investment Law ◽  
Equitable Treatment

Abstract Promoting the rule of law is a potentially strong legitimating narrative for international investment law. Illustrating the interlinkage, the ubiquitous ‘fair and equitable treatment’ (FET) standard embodies distinctly rule of law requirements. But these requirements remain open-textured and allow understanding their meaning in either more ‘international’ or ‘national’ way. An ‘international’ understanding – detached from the host State’s vision on how the rule of law should look like – should remain dominant. But I argue that decision-making under the FET standard should also involve a systematic engagement with how these requirements would be understood in the host State’s law and how they were complied with from that perspective. Whilst not determinative for establishing a breach, this assessment better respects the expectations of the parties, strengthens the persuasiveness of findings and helps enhance the national rule of law as a key contributor to the ultimate goal of investment protection – economic development.

Revisiting Res Judicata and Lis Pendens in Investor-State Arbitration

2016 ◽  
Vol 15 (2) ◽  
pp. 264-286 ◽  
Author(s):  
Jose Magnaye ◽  
August Reinisch
Keyword(s):  
Rule Of Law ◽  
The Rule Of Law ◽  
Res Judicata ◽  
Investment Arbitration ◽  
Identity Test

Questions concerning res judicata and lis pendens in investment arbitration proceedings remain a subject of academic discussions, particularly with regard to the application of the “triple identity test”. The necessity of a more coherent approach to the matter is a pressing issue amidst the criticisms of the investor-state arbitration system as a whole. Finding viable solutions to prevent multiple/parallel proceedings and contradicting decisions is crucial in further strengthening the rule of law in investment arbitration.

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