The independence of the domestic judiciary in international law (original) (raw)
This article represents the first comprehensive analysis of the challenges to the independence and impartiality of international arbitrators in investment disputes. This article evaluates the rules that govern such challenges and asserts that the standards for challenging ICSID arbitrators are not adequate to enable real challenges to arbitrators. Indeed, only one challenge under the ICSID rules has been successful. This in itself is not necessarily problematic assuming the parties agree to dispute settlement with this in mind. This article proposes adjustment of these standards in a variety of ways to help ensure the fairness and perceived fairness of the arbitral process. Finally, this article calls for states and the arbitration community to take steps to combat conflicts of interest of international arbitrators in order to maintain the legitimacy of the regime and to continue to promote growth of the global economy.
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).
Investment arbitration can contribute to the promotion of the international rule of law through a wider use of legal norms in the international society and through the protection of private persons’ rights. However, as shown by the European Union’s approach in this field, investment arbitration can only be a useful complement to the rule of law within the State if it is reformed to incorporate some elements of permanent courts. Firstly, legal certainty requires clearer and more predictable case-law, which would be eased by an appeal system based on a permanent body. Secondly, procedural fairness needs to be increased, especially through new appointment methods. Thirdly, several mechanisms can foster transparency.
The choice between arbitration and judiciary in international trade and investment
In this contemporary globalization, the international arena is dominated by a tendency to arbitrate all disputes related to international trade and investment, where the concerned parties agree to entrust the current or future disputes that may occur; to a private arbitrators of their choice, and who are recognized for their competence and expertise in this area to settle such disputes with binding arbitration provisions. It has helped to flourish and spread of the international commercial arbitration in the markets of trade and investment as a legal system for the rapid resolution of disputes and its preference increased over the national judiciary in various countries of the world today, for several considerations, including:-1/ The desire of practitioners of various international commercial activities and investment in resolving disputes arising out of their contractual or non-contractual relationships by a satisfactory solutions that are usually supportive to the reality of the niche in which they work. 2/ The desire of the contractual relationship parties (the litigants involved in a dispute) towards the arbitration proceedings to be conducted with least publicity and with greatest possible confidentiality, both in terms of holding meetings or in terms of limiting the persons involved, including the advisers, without giving the right to participate to the others wherever they wish, as well as to preserve the confidentiality of the expected arbitral award to be issued and not to be published for public, in order to maintain secrecy their transactions and works.
European Yearbook of International Economic Law, 2020
This Chapter first summarizes the criticism voiced against investment treaty arbitration with specific regard to its relationship with domestic courts (infra at Sect. 2.1). It does not seek to discuss all of the multiple concerns raised against investment arbitration, which have already been addressed in the authors' First CIDS Report 1 and are further examined in the UNCITRAL Secretariat's papers, 2 among other materials. 3 Discussing the criticism of investment arbitration vis-à-vis domestic courts requires providing an overview of the main reasons why States created the investment treaty system in the first place (infra at Sect. 2.2) and examining today's justifications for keeping or putting in place an international system of investment dispute resolution, whether in the form of arbitration or standing adjudicatory bodies (infra at Sect. 2.3). The following subsections will in particular ask: What goals were IIAs intended to achieve? In light of those goals, what is the function of international courts and tribunals in the investment law domain, either in their current arbitral configuration or in future constellations such as a MIC? As States are considering questions concerning the institutional design and redesign of the system, it appears important to seek to provide answers to these questions in order to test the continuing validity of the assumptions which underpin the conclusion of investment treaties with international dispute resolution mechanisms.
Northwestern Journal of International Law & Business, 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. This Article presents the latest trends in the challenge process based on an empirical study of the most recent ICSID tribunal decisions. The thesis of the Article is that arbitral independence in international investment arbitration is the result of a “process of communication” among different actors and prompted by the arbitration community itself. Arbitral independence is only partially a result of legal rules. It is also a consequence of the creation of a tightly connected community of international arbitrators that has been established over the years of arbitral practice and which has transposed their ethos and professional practices onto investment arbitration. This community has constructed a very high standard of independence for international investment arbitration, which is now set in motion by other actors involved in the field. The Article proposes finally the introduction of a new system of control in international investment arbitration that can address the peculiarities of the constructed process of the creation of investor-state arbitration: certification.
The Impartiality and Independence of Arbitrators Reconsidered
2007
It is important not to blame the messenger. The International Bar Association Working Group and ensuing Guidelines on Conflict of Interest in International Commercial Arbitration not only included some of the most brilliant arbitrators, they also did brilliantly at finding common ground in a minefield that, until their involvement, was marked by both rigidity in international rules governing conflicts of interest and widely disparate practice in domestic jurisdictions. Nor should the Working Group and Guidelines be held responsible for a pervasive problem that has plague modern international commercial arbitration from the outset. This essay explores the challenge, expressed by V.V. Veeder, that the guidelines governing conflict of interest is encouraging the "malign practice" of new tactical challenges to arbitrators. It also reflects on the unprecedented decision by the LCIA Court and Board to publish abstracts of the decisions in which arbitrators are challenged. Part I...
Domestic Contestations against International Courts and Tribunals: Introduction to the Special Issue
Journal of International Dispute Settlement, 2021
Domestic authorities, including national courts, at times, resist accepting the decisions of international courts and tribunals. The formal division between the national and international legal orders creates space for domestic authorities to contest or avoid international binding judicial decisions. The present special issue examines domestic contestations in multiple fields of international law, including human rights and investment law. In contesting some of the international decisions, domestic authorities invoke a wide range of legal bases in resisting the effect of international decisions. The contributions in the present issue examine various such argumentative bases of contestations. The contributions also consider whether domestic resistance could give rise to the opportunity for international courts and tribunals to critically reflect on their own decisions and underlying reasoning.
National Court Intervention in Arbitration as an Investment Treaty Claim
International and Comparative Law Quarterly, 2011
International commercial arbitration has long been a popular method for resolving cross-border business disputes. The opportunity for parties to choose their adjudicators and the dispute resolution procedure, the scope for privacy and the greater capacity for enforcement of awards compared to court judgments are all important reasons that parties prefer international arbitration over litigation. Reinforcing this trend in favour of international commercial arbitration has been a general consensus among national courts and legislatures that support, rather than interference, should be provided to the arbitral process. Such a philosophy is apparent, for example, in the requirements in the widely adopted New York Convention for States to recognize and enforce both foreign arbitration agreements and awards, and in international instruments such as the 1985 UNCITRAL Model Law on International Commercial Arbitration, which authorize national courts to assist, rather than intervene, in the ...