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43 results

Page 1 of 3

  • 60 - Legitimacy of Investment Arbitration

  • from Part XII - Areas of Concern
  • Edited by Stefan Kröll, Andrea K. Bjorklund, McGill University, Montréal, Franco Ferrari, New York University
  • Book:
    Cambridge Compendium of International Commercial and Investment Arbitration
    Published online:
    18 February 2023
    Print publication:
    02 March 2023, pp 1825-1852

  • Summary

    This chapter does not provide an argument for or against the legitimacy of investment arbitration, but analyzes the discourse on legitimacy from a conceptual standpoint. Rather than offering an abstract analysis of different theoretical conceptions or concepts of legitimacy, it focuses on the concrete aspects addressed by different participants in the debate under the heading of legitimacy and the differences in underlying assumptions. It explains that because of similarities between investment arbitration and mechanisms of public law and governance, the legitimacy critique of investment arbitration in essence results from the observation of a mismatch between the private-law-inspired rationale of investment arbitration and the demands of principles of constitutional law that are generally used to assess the legitimacy of governance mechanisms. The chapter then turns to how states and policy-makers, arbitral tribunals, and scholarship can and in parts do react to the legitimacy critique of investment arbitration and how they aim at reestablishing legitimacy.

Schreuer's Commentary on the ICSID Convention
  • A Commentary on the Convention on the Settlement of Investment Disputes between States and Nationals of Other States
  • 3rd edition
  • Edited by Stephan W. Schill, Loretta Malintoppi, August Reinisch, Christoph H. Schreuer, Anthony Sinclair
  • Published online:
    17 September 2022
    Print publication:
    22 September 2022
  • This unique compendium offers an article-by-article commentary on the Convention on the Settlement of Investment Disputes between States and Nationals of Other States. Providing a comprehensive explanation of the functioning of this important mechanism for the settlement of investor-State disputes, it incorporates the preparatory work, the Convention's text, various rules and regulations adopted under the Convention, the practice of arbitral tribunals under the Convention, and academic writings on the subject. The first and second editions of this Commentary have been relied upon by numerous arbitral tribunals. This third edition follows the same system and approach, but extensive updates and revisions reflect the vast increase in arbitral practice since the publication of the second edition. A number of novel issues that have emerged through this practice are now addressed, making this practice-oriented guide an indispensable tool for anyone dealing with the ICSID Convention. Likewise, the number of contributors to and editors of the third edition has increased.

  • 9 - Investment Dispute Settlement à la carte: A Proposal for the Reform of Investor–State Dispute Settlement

  • from Part II - Current Challenges in International Investment Dispute Settlement
  • Edited by Manfred Elsig, Universität Bern, Switzerland, Rodrigo Polanco, Universität Bern, Switzerland, Peter van den Bossche, Universität Bern, Switzerland
  • Book:
    International Economic Dispute Settlement
    Published online:
    07 August 2021
    Print publication:
    22 July 2021, pp 220-263

  • Summary

    There is widespread consensus that investor–state dispute settlement (ISDS) is in need of reform. In late 2018, Working Group III of the United Nations Commission on International Trade Law (UNCITRAL), tasked with considering investor–state dispute settlement reform, agreed by consensus that reforming the current system of investor–state arbitration was “desirable” in order to address concerns relating to: (1) consistency, coherence, predictability, and correctness of arbitral rulings; (2) independence, impartiality, and diversity of decision-makers; and (3) costs and duration of proceedings (UNCITRAL 2018). Since then, delegations at UNCITRAL have started looking at potential solutions in order to address the concerns identified (Sachetim and Codeço 2019; UNCITRAL 2019a).

  • System-Building in Investment Treaty Arbitration and Lawmaking

  • Stephan W. Schill
  • Journal:
    German Law Journal / Volume 12 / Issue 5 / 01 May 2011
    Published online by Cambridge University Press:
    06 March 2019, pp. 1083-1110
    • Article
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  • Since the late 1990s investment treaty arbitration has developed into one of the most vibrant fields of international dispute settlement with now almost 400 known cases. It involves claims by foreign investors against host States for breach of obligations assumed under one of the more than 2700 bilateral investment treaties (BITs), under the numerous investment chapters in bilateral or regional free trade agreements, including the North American Free Trade Agreement, or under sectoral treaties such as the Energy Charter Treaty. All of these instruments offer comprehensive protection to foreign investors by setting down principles of substantive investment protection, including national and most-favored-nation treatment, fair and equitable treatment, full protection and security, protection against expropriation without compensation, and free capital transfer. They also allow investors to enforce these standards in arbitral proceedings directly against the host State, most commonly under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention). Investment treaty arbitration thereby not only empowers foreign investors under international law, but also introduces investment treaty tribunals as novel actors into the arena of international investment law. Although arbitration has been a classic form of dispute settlement on the State-to-State level, including for the settlement of investment-related disputes, modern investment treaty tribunals have wider jurisdiction and are more removed from State control than any of their predecessors.

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