Ashvini Ambihaipahar | University of Technology Sydney (original) (raw)
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One cannot deny that the access to energy facilitates. From employment creation to human developm... more One cannot deny that the access to energy facilitates. From employment creation to human development, from security interests to the empowerment of women; energy remains at the heart of all countries’ core interests. However, the statistics are quite alarming. Twenty percent of the world’s population is still without access to electricity; and almost three billion people still rely on wood, coal, charcoal or animal waste for cooking and heating.1 A major discussion point that stems from these statistics is that the lack of access to modern energy is a major barrier to addressing basic human rights and building shared prosperity; more specifically, a hindrance to achieving the UN Millennium Development Goals (MDGs).
When it comes to bilateral investment treaties (BITs) and free trade agreements (FTAs), arbitrati... more When it comes to bilateral investment treaties (BITs) and free trade agreements (FTAs), arbitration is the primary (but not the only) contemporary mechanism for resolving investor state disputes. Compared with previous methods that relied on the intervention of the investor's home state or national courts, arbitration has a number of advantages. It has been said that ‘the awards of arbitrators are more widely enforceable than any other adjudicative decision in public law’. It has been argued that parties have greater control over the process, greater flexibility and that it maintains good commercial relationships.
Conversely, critical concerns have recently precipitated about the suitability of arbitration in the context of investment disputes. There is much heated discussion about arbitration impacting upon government accountabilities and domestic and public policies.
This paper is divided into three sections. The first part will reflect on the development of investor state dispute arbitration. The second part will examine the application of arbitration under BITs and FTAs. The final part of this paper will then illustrate the current criticisms made about investment dispute arbitration. Ultimately questioning whether investor state dispute arbitration undermines the rule of law.
One cannot deny that the access to energy facilitates. From employment creation to human developm... more One cannot deny that the access to energy facilitates. From employment creation to human development, from security interests to the empowerment of women; energy remains at the heart of all countries’ core interests. However, the statistics are quite alarming. Twenty percent of the world’s population is still without access to electricity; and almost three billion people still rely on wood, coal, charcoal or animal waste for cooking and heating.1 A major discussion point that stems from these statistics is that the lack of access to modern energy is a major barrier to addressing basic human rights and building shared prosperity; more specifically, a hindrance to achieving the UN Millennium Development Goals (MDGs).
When it comes to bilateral investment treaties (BITs) and free trade agreements (FTAs), arbitrati... more When it comes to bilateral investment treaties (BITs) and free trade agreements (FTAs), arbitration is the primary (but not the only) contemporary mechanism for resolving investor state disputes. Compared with previous methods that relied on the intervention of the investor's home state or national courts, arbitration has a number of advantages. It has been said that ‘the awards of arbitrators are more widely enforceable than any other adjudicative decision in public law’. It has been argued that parties have greater control over the process, greater flexibility and that it maintains good commercial relationships.
Conversely, critical concerns have recently precipitated about the suitability of arbitration in the context of investment disputes. There is much heated discussion about arbitration impacting upon government accountabilities and domestic and public policies.
This paper is divided into three sections. The first part will reflect on the development of investor state dispute arbitration. The second part will examine the application of arbitration under BITs and FTAs. The final part of this paper will then illustrate the current criticisms made about investment dispute arbitration. Ultimately questioning whether investor state dispute arbitration undermines the rule of law.