The independence of the domestic judiciary in international law (original) (raw)
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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.
Judicial Independence in International Courts
2021
The issue of the defining elements of a truly fair justice system has become a constant and consistent concern of international and/or regional political and legal organisations. Given the scale of the phenomenon of establishing and resorting to international courts and tribunals, reflecting, among others, the preference and availability of international actors for settling their disputes by independent and impartial decision-makers, the principles and values of the international judiciary have been subjected to discussions in an increasingly elaborate manner. Among these, judicial independence occupies a special position, being tightly connected to the issue of the legitimacy of such institutions, as an essential factor in ensuring voluntary compliance to the internationally adopted decisions. In this context, the present paper addresses the independence of the judiciary in international courts, both in terms of the fundamental theoretical contributions and from a practical perspec...
Penn State Journal of Law and International Affairs , 2019
International commercial arbitration has enjoyed increasing popularity as an alternative to litigation in court, with high standards expected of arbitrators in managing a fair process and ensuring a just outcome. Central to the concepts of fairness and justice are neutrality, independence and impartiality, themes that are often closely associated with each other in arbitral proceedings and often lack specific guidance as to their meaning. This paper analysis these concepts, and discusses how adherence to them is largely dependent upon the appointed arbitrators. While parties have the freedom to choose their arbitrators, domestic laws rarely impose specific qualifications in order to act as an arbitrator. However, in light of the importance of the task that arbitrators must undertake, some minimum qualifications are generally imposed by international, institutional and/or national laws. The legal requirement of impartiality and independence is the one most frequently provided for in legal instruments, whereas neutrality is dealt with in a more subtle, indirect way. The paper discusses the lack of clear and effective standards both domestically and internationally for measuring arbitrator performance and why this is a cause of concern, particularly in light of the private and confidential nature of the arbitral process and the final and binding nature of the award that results from that process. The paper discusses how the fairness of the process and the outcome that results is ostensibly supported by the requirement of good faith from arbitrators, and the need for disclosure by them of any pre-existing contact with a party that may give rise to bias or the perception of bias throughout the process. The paper concludes with proposals for reform to enhance adherence to these distinctive and central themes in international commercial arbitration, in order that parties can experience a fair process and attain a just outcome.
Nnamdi Azikiwe University Journal of International Law and Jurisprudence, 2017
This paper analyses the mechanism for settlement of investment dispute in International Arbitration. The paper adopts doctrinal and analytical approach to legal research. The study examines the provisions of the International Centre for Settlement of Investment Dispute (ICSID) being the most recognised platform for settlement of investment dispute. However, references were made to similar institutions for comparison. The study reveals that Investment Treaties-either multi or bilateral treaty (BITs) are entered into to provide avenue for settlement of investment dispute that may arise between states or their nationals to the treaty. The paper argues that certain provisions of ICSID and other institutional mechanisms for settlement of investment dispute contain compulsory arbitration thereby negating the concepts of consent and party autonomy which are salient elements of international arbitration. The paper concludes with recommendations that the offending provisions of ICSID should be reformed in tandem with jurisprudence of arbitration proceedings.
PROTECTION IN INTERNATIONAL INVESTMENT ARBITRATION: CHALLENGE TO STATE SOVEREIGNTY?
This paper explores whether in an investor-state arbitration the state sovereignty poses a challenge to the arbitral tribunal in ordering interim measures in aid of arbitration. It also examines whether the tribunal can order interim measures that are binding on the state party and whether the sovereign status of the state may, in practical terms, influence the considerations of the arbitral tribunal while deciding on the grant of interim measures against the state party. In examining these issues the notion of sovereignty has been looked at through various lenses or perspectives, viz. classical, teleological and objective.
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: