Drafting a Twenty-First Century Code of Conduct for International Investment Adjudicators (original) (raw)
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Permanent Investment Courts, 2020
could look like. In comparing these two different contextual applications of ethical rules (to arbitrators and judges respectively), the contribution will finally argue that, given their fundamentally different sources of authority and perceived (reputational and actual) duties and responsibilities, any confusion in applying ethical rules tailored for arbitrators to international court judges will prove to be problematic and work against intended reform objectives such as (re)establishing legitimacy.
A Brave, New, International Investment Court in Context. Towards a Paradigm Shift of the ISDS
LSN: International Courts & Tribunals (Topic), 2019
The idea of a Multilateral Investment Court seems to be one of the most prominent initiatives of the “multilateralization” of international investment law during this century. The creation of a new international, permanent court concentrated on settling investor – state disputes is an extraordinary challenge. Possible problems relate not only to the negotiations concerning the organizational and procedural aspects necessary to ensure the efficient operation of this type of body. It is also necessary to take into account the dynamics of the functioning of international adjudication as such, as well as the controversies surrounding the international legal protection of foreign investments.
Reforming investor-state dispute settlement (ISDS):European Union flexing its normative power?
2021
This dissertation examines whether the European Union ('EU') is acting as a normative power in its pursuit of reform of Investor-State Dispute Settlement ('ISDS') in the form of the European Commission's ('Commission') proposals on the Investment Court System ('ICS'). The EU has emerged as a major player in international investment, and the EU is pursuing reform of ISDS in its new generation of trade and investment agreements. The Commission has proposed an ICS that is "a new fully transparent system for resolving investment disputes with publicly appointed judges the highest ethical standards and the possibility to have errors corrected through an appeal instance." 1 This dissertation seeks to contribute to Normative Power Europe ('NPE') literature as proposed by Ian Manners 2 by incorporating normative ethics of the EU analysis to the novel case of ICS at the bilateral and multilateral levels. It examines the virtue, deontological and 1 Commission, 'Why the new EU proposal for an Investment Court System in TTIP is beneficial to both States and Investors' (Memo) (
Towards a World Investment Tribunal: New Era in Investor – State Dispute Settlement
International Conference on Social Science Research, 2018
Introduction: Globalisation, in one sense, may be described as “free movement of goods, capital, humans and information alongside the World”. In this respect, the contradiction between the followers of “national treatment” and “minimum international standards” has been the most crictical debate among developped exporter countries and developing countries. Free movement of capital and foreign direct investments are the one of the most significant in globalization era. International treaty arbitration has become the major and most effective means of investor - State dispute settlement (ISDS) mechanism as a result of foreign investors’ and capital exporter States’ widespread and strong demands of confidence. Material and Methods: It is possible to classify the evolution of ISDS in four era, namely emergence or infancy, dichotomy, prolification and finally re-orientation. Recent attempts in the cadre of Canada – EU Investment Agreement (CETA), TTIP and UNCTAD announce the oncoming constitution of a permanent Investment Court and the very first establishment of an Appellate body in ISDS proceedings. This presentation examines the basis and development of treaty arbitration, the structure and features of the permanent Investment Tribunal and the Appellate body as well as the contribution of the mentionned bodies into international investment law. Results: A permanent World investment tribunal and appelate body will constitute the birth of a new era in ISDS. It is observed that the international law had a corrective effect over the national regulations in ICSID arbitral awards regardless the choosen applicable law, however, it is not possible to argue that an unity of jurisprudence is created yet. In addition, it is noticed that different arbitration tribunals have given contradictory judgements on similar cases. Discussion: Hence, it is deduced that a permanent Investment Court and the Appellate body will gradually contribute to the aims of the enhancement of ‘minimum international standards’ and creation of an unity of jurisprudence in the settlement of international investment and trade disputes, as well as of streghtening the ethical principles and impartiality of arbitrators. Acknowledgement: It is a contribution to the emerging discussion on a World investment tribunal and it underlines its effect on the creation of a standart international investment law.
Ex Pluribus Unum? On The Form and Shape of a Common Code of Ethics in International Litigation
AJIL Unbound
In April 2019, member-states of UNCITRAL Working Group III requested the UNCITRAL Secretariat to undertake preparatory work for a Code of Conduct for Investor-State Dispute Settlement focusing on the implementation and enforceability of such a code. This groundbreaking development signals that, for the first time, a consensus exists that a code of ethics for Investor-State dispute settlement is desirable and needed. This contribution addresses three threshold questions that such preparatory work raises, namely: the preferred form of the code, the code's substantive reach, and the optimal process for bringing a code to fruition. As set out below, we urge that states adopt a mandatory common code of ethics for disputes involving states, and that arbitral institutions adopt this code as part of their rules for administering arbitration.
Even though international investment law (IIL) has developed at an unprecedented pace, its newly acquired popularity has come at a high cost. In a time of crisis of Western liberal-democracy and questioning of the economic model even by its fierce advocates, it has become easy prey for those disappointed with the distribution of wealth and prestige and for the political class, which has tried to “outsource” responsibility for problems unresolved domestically. Deficiencies in the construction of IIL has aggravated a legitimacy crisis. Unfortunately, current reform initiatives do not address the roots of the problem. In this paper, I suggest ways of solving the legitimacy problem and for restructuring the normative framework. I start by asking whether the legitimacy crisis is an actual problem worth analysis or if it is a theoretical exercise void of practical relevance (Part 2). On the assumption that addressing this issue is necessary for the subsistence of IIL, three possible sources of legitimacy are indicated. Having opted for so-called social legitimacy, I refer to the Weberian legal-rational model (Part 3). In order to decide which stakeholders should be allowed to influence investment law directly, I recall Leon Petrażycki’s notion of the law’s superiority over morality (Part 4), which leads me to the conclusion that IIL reform should focus on home states, rather than on the investor-host state balance. With the backdrop of the subjective scope of investment law, I highlight major substantive shortages of IIL (Part 5). In accordance with the theory of legal impulsions, I subsequently argue that the current restrictive definition of IIL not only does not reflect the reality of arbitral decision-making but also hinders meaningful reform debate. From this rift between formal definition and actual understanding of IIL stem misconceptions about domestic problems that are transferred to an international plane. I argue that without reaching domestic compromise in terms of wealth distribution, current international initiatives constitute an anaesthetic, at best (Part 6). The solution advocated in this paper is to fully embrace the principle of rule of law as the substantive contents and formal requirements with respect to IIL. It is argued that an investment consensus based on this principle simultaneously resolves the legitimacy concerns and contributes towards the development of law (Part 7). Because investment law both constitutes and is created by the international investment community, a separate passage is dedicated to the relationship between the rule of law and the rule of arbitrators, and its possible impact on legitimacy (Part 8). Having thus prepared the ground for internalisation of the rule of law, I argue that IIL can embrace a broader standard (thick rule of law) than what would be reasonable in other branches of public international law (Part 9), which is adapted for investment purposes (Part 10). I conclude with general remarks (Part 11).
Constructing the Independence of International Investment Arbitrators: Past, Present and Future
SSRN Electronic Journal, 2016
Disqualification challenges against international investment arbitrators are increasing. This poses a great challenge for the legitimacy of the international investment regime. The aim of the Article is to trace the source of this development and to propose ways for the future structuring of an international investment regime that is both transparent and effective. Legal literature understands arbitrator independence as a standard imposed by legal rules. This does not capture the reality of international investment arbitration, especially in the framework of the ICSID Convention, which seems to set a lower standard of independence for ICSID arbitrators.
Journal of International Economic Law, 2013
Investment treaty tribunals have increasingly touched upon delicate issues, including for example access to water, public health or cultural polices. What standard of review have they adopted vis-a-vis state regulation aimed to protect fundamental interests and values? Can ideas regarding the standards of review be borrowed from other national and international systems; and if so, which one should be selected? Or, rather, due to its hybrid nature investment law scholars should develop specific standards of review only for investment law and arbitration? Far from being merely theoretical, these questions touch upon the legitimacy of international investment law and arbitration as a component of multilevel governance which now characterizes international (economic) relations. Investigating these questions can contribute to the alignment of general international law and investment protection, reinforcing the capacity of international investment law to contribute to the public wealth. The article submits that while a standard of complete deference to national measures would run against the very purpose of international investment law; an overly intrusive standard is neither a feasible option. In this context, the authors consider standards developed within the WTO as a possible model for international arbitration tribunals.
International standards of investment in international arbitration procedure and investment treaties
Revista Jurídicas, 2018
Debido a la importancia significativa de la inversión extranjera en el crecimiento económico de los países, especialmente los países en desarrollo, el propósito de esta investigación es revisar las normas internacionales de inversión en el procedimiento de arbitraje internacional y los tratados de inversión que han sido muy eficaces para eliminar las barreras de inversión así como para proteger y atraer a más inversionistas extranjeros a los Estados anfitriones. El método descriptivo-analítico fue aplicado en esta investigación utilizando recursos bibliográficos. El presente estudio, al describir y analizar los conceptos, ejemplos y métodos de aplicación de las normas internacionales de inversión en los tratados bilaterales y multilaterales de inversión, así como el procedimiento de arbitraje internacional, ha llegado a la conclusión de que estas normas son muy flexibles y dinámicas, y evolucionan en el tiempo.
Reforming International Investment Arbitration: an Introduction
The Law & Practice of International Courts and Tribunals
For over a decade, investor-state dispute settlement (ISDS) has suffered a socalled legitimacy crisis.1 Critics have argued that ISDS is pro-investor, biased against developing countries, beset by incoherent jurisprudence and plagued by a lack of transparency and excessive costs and compensation.2 While the 1 Amongst the first scholarly critiques was Susan D. Franck's, "The Legitimacy Crisis in Investment Treaty Arbitration: