Abstract
Given that the legitimacy crisis against investment arbitration is essentially a Rule of Law crisis, the aim of this chapter is to highlight the substantive and procedural components of the Rule of Law in the context of investment arbitration. To that end, the first part of this chapter will provide a brief overview of the historical origins of the Rule of Law. In the second part, both the procedural and the substantive aspects of the Rule of Law will be examined in order to highlight its significance and relevance in investment disputes. Finally, the third part of this chapter elaborates on the way the concept of the Rule of Law interacts with certain aspects of investment arbitration, and, most importantly, how it could contribute to ending the legitimacy crisis. Eventually, the chapter argues that the Rule of Law constitutes a concrete theoretical framework to evaluate investment arbitration. This argument builds on the understanding that the Rule of Law could be and should be utilized as a framework through which legal developments in investment treaty arbitration can be analysed, compared, and evaluated. This in turn will help us address the research problem of this monograph.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
Loughlin (2010), p. 324.
- 2.
See generally Miller (2010).
- 3.
See generally Hayek (2011), pp. 241–243.
- 4.
See generally Maravall (2003), pp. 264–265.
- 5.
Ostwald (1986), p. 497.
- 6.
Tamanaha (2004), p. 8.
- 7.
Aristotle (2008), pp. 29 & 140.
- 8.
Van Caenegem (1996), p. 73.
- 9.
On the German tradition and the Rule of Law (‘Rechtsstaat’) See Frandberg (2014).
- 10.
ibid.
- 11.
Tamanaha (2004), p. 24.
- 12.
Smithers (1902), pp. 689–690.
- 13.
Tamanaha (2004), p. 26.
- 14.
The Magna Carta, (The British Library).
- 15.
Bingham (2010), p. 12.
- 16.
Radin (1947), pp. 1060–1061.
- 17.
The Magna Carta, (The British Library).
- 18.
Allan (2000), ch. 3.
- 19.
Costa (2007), p. 78.
- 20.
Bingham (2010).
- 21.
Bill of Rights, Art. VI.
- 22.
Universal Declaration of Human Rights.
- 23.
Montesquieu (2007), p. 150.
- 24.
Tamanaha (2004), p. 36.
- 25.
Bingham (2010), ch. 4.
- 26.
- 27.
Waldon (2002).
- 28.
Stanford Encyclopedia of Philosophy, ‘The Rule of Law’ (2016).
- 29.
Craig (1997), p. 1.
- 30.
Raz (1979), p. 211.
- 31.
ibid, p. 211.
- 32.
ibid, p. 213.
- 33.
This requirement can be found in the Universal Declaration of Fundamental Human Rights, Art.10; European Convention on Human Rights, Art. 6.
- 34.
Raz (1979).
- 35.
ibid, p. 217.
- 36.
Cross (2008), p. 558.
- 37.
Dicey (1958), p. 202.
- 38.
ibid, p. 192.
- 39.
Fuller (1969), p. 153.
- 40.
ibid, ch. 2.
- 41.
Act of Settlement (1701).
- 42.
Constitutional Reform Act 2005, Art. 3.
- 43.
The Constitution of the United States guarantees US Federal Judges security of tenure. In specific Article 3 of the Constitution states that federal judges may hold their position during ‘good behaviour’ and provides that their compensation for their services shall not be diminished.
- 44.
It is commonly accepted in all modern democracies that the selection of judges should be based upon legal qualifications. Moreover, the members of the judiciary should be provided with permanent or at least long-term appointments, sufficient remuneration and substantive and procedural protections against their removal from office. See generally United Nations - Office of the High Commissioner for Human Rights (2003), ch. 4.
- 45.
Gaukrodger (2017), p. 11.
- 46.
The Federalist Papers, No.78.
- 47.
ibid.
- 48.
ibid.
- 49.
See Code of Conduct for Members and Former Members of the CJEU, Art. 4-5; Rules of Court—ECHR, Art. 3-4; Rome Statute of the ICC, Art. 40-41; Statute of the ICTY, Art. 15.
- 50.
Van Harten (2010a), p. 642.
- 51.
For a detailed analysis See Brown (2010), p. 662.
- 52.
Hayek (2005), p. 75.
- 53.
The European Court of Human Rights gave an authoritative definition of ‘legal certainty.’ See Case Maestri v Italy Application No. 39748/98, para. 30. According to Court, the law should be accessible to the individuals concerned and formulated with sufficient clarity to enable them to foresee, to a reasonable degree, the consequences which a given action may entail.
- 54.
For the theory of Weber See Weber (1978).
- 55.
Fuller (1969), p. 229.
- 56.
Foran (2019), p. 26.
- 57.
- 58.
- 59.
Dworkin (1985), p. 11.
- 60.
ibid, pp. 11–12.
- 61.
Office of the UN High Commissioner For Human Rights (2005), p. 4.
- 62.
ibid.
- 63.
In 2012, the Security Council of the UN issued a report on the Rule of Law placing it at the center of the UN’s mission and, at the same time, providing an authoritative definition of the Rule of Law. See United Nations General Assembly (2012), para. 2.
- 64.
ibid, para. 2.
- 65.
Van Harten (2010a), p. 628.
- 66.
Van Harten (2010a), p. 628.
- 67.
Montt (2009), p. 139. In a recent report issued by the International Law Association it is claimed that one of the primary methods to identify domestic principles that could be used at the international level is through ‘functionalism.’ In accordance with, international institutions that have similar functions with domestic institutions could take advantage of certain practices and principles. See International Law Association- Study Group (2016), p. 56.
- 68.
ibid.
- 69.
See generally Sweet (2014), pp. 33–35.
- 70.
While several constituent ‘elements’ of the Rule of Law have been the subject of a number of studies and commentaries, a study that puts them all together and comprehensively addresses the Rule of Law in the context of investment arbitration is missing. For example, August Reinisch argues that the Rule of Law could be used as a yardstick for investment arbitration. Yet, his paper adopts a narrow procedural aspect of this concept. See Reinisch (2016); For the same observation See Shokouh (2014), ch. 4; Schultz (2014); Schill (2015); Puig and Shaffer (2018); Tobias Stoll (2018); Allsop (2017); Schacherer (2018); Arcuri (2009); Pauwelyn (2015); Chase (2015); Ohler (2017); Hansen (2010). Finally, it is worth noting that the International Law Association has established a committee in order to develop a concept of the Rule of Law in the domain of international investment law. The committee is expected to deliver its final report in 2022. For a draft version of the report See International Law Association in Sydney (2018).
- 71.
- 72.
- 73.
See generally United Nations Commision on Human Rights (2003).
- 74.
Prislan (2012), p. 451.
- 75.
Among others these often include the UN Convention and the International Labor Organization Conventions. See generally Ulrich Petersmann (2009), pp. 523–526.
- 76.
Atanasova (2019), p. 366.
- 77.
Article 25 of the ICSID Convention limits the jurisdiction of the Centre to ‘to any legal dispute arising directly out of an investment.’
- 78.
See generally Brabandere (2019).
- 79.
Biloune and Marine Drive Complex Ltd v Ghana Investments Centre and the Government of Ghana (UNCITRAL), Award on Jurisdiction and Liability, 27th October 1989, para. 203.
- 80.
Técnicas Medioambientales Tecmed, S.A. v. The United Mexican States, ICSID Case No. ARB (AF)/00/2, para. 121.
- 81.
Waibel argues that tribunals often follow superficial treaty interpretation distorting the parties intentions and treaty bargain in a way that favors investment protection at the detriment of non-investment obligations. See Waibel (2011).
- 82.
For an analysis as to how human rights are invoked and used in the context of investment arbitration See Steininger (2018), pp. 45–46.
- 83.
In CMS v Argentina the annulment committee identified a series of errors and defects. However the Committee acknowledged that it exercises its jurisdiction under a limited mandate conferred by the ICSID Convention. According to the Committee, the scope of this mandate allows annulment as an option only when specific conditions exist and in those circumstances the Committee could not simply substitute its view of the law and its own appreciation of the facts for those of the panel. See CMS Gas Transmission Company v. The Republic of Argentina, ICSID Case No. ARB/01/8, Decision of the Ad Hoc Committee on the Application for Annulment of the Argentine Republic, para. 158.
- 84.
ICSID Convention, Art. 52.
- 85.
Butler and Musa (2018), p. 445.
- 86.
Paulson (2013), p. 232.
- 87.
Recently a tribunal held that it enjoyed jurisdiction over a human rights counterclaim. See Urbaser S.A. and Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partzuergoa v. The ArgentineRepublic, ICSID Case No. ARB/07/26. In particular, the Tribunal held that accepts corporate social responsibility as a standard of crucial importance for companies. Furthermore, the panel accepted that this standard includes commitments to comply with human rights.
- 88.
See generally Desierto (2018).
- 89.
Calamita (2013), p. 170.
- 90.
O’Connor (2018).
- 91.
UN Economic and Social Council, para. 49.
- 92.
Schefer (2016), p. 535.
- 93.
As the OECD recognises, there is a problem in using a private dispute settlement mechanism for resolving disputes between private parties and States. See OECD (2005).
- 94.
For example, look at the relevant rules of the London Court of International Arbitration, the Stockholm Chamber of Commerce and the International Chamber of Commerce.
- 95.
For a case regarding a tribunal rejecting a request for additional information See Biwater Gauff (Tanzania) Ltd. v. United Republic of Tanzania, ICSID Case No. ARB/05/22.
- 96.
Nyegaard Mollestad (2014), p. 38.
- 97.
Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce, Art. 3; UNCITRAL Arbitration Rules, Art. 34.
- 98.
ICSID Convention, Art. 11.
- 99.
The complete subordination of transparency to rules of confidentiality is inappropriate. Trade secrets and other sensitive information of foreign investors should be excluded. This is discussed in Chap. 7.
- 100.
See generally United Nations Commision on International Trade Law (2010), pp. 9–10.
- 101.
Suez, Sociedad General de Aguas de Barcelona, S.A.and Vivendi Universal, S.A. v. Argentine Republic, ICSID Case No. ARB/03/19, Order in Response to a Petition for Transparency and Participation as Amicus Curiae, para. 22.
- 102.
Stern (2009), p. 347.
- 103.
Fortier (2009), p. 13.
- 104.
Shirlow (2017), p. 98.
- 105.
ibid, p. 98.
- 106.
- 107.
Franck (2011), p. 788.
- 108.
ibid.
- 109.
Rosert (2014), p. 15.
- 110.
ibid.
- 111.
Third-Party Funding will be discussed on the seventh chapter as a method through which financially weak parties may proceed with a claim. In short, the financialization of investment arbitration could undermine the assumption that investment arbitration is functioning as a credible and, most importantly, a fair legal system for dispute settlement.
- 112.
Allan (2000), ch. 5.
- 113.
Dieng (1997), p. 550.
- 114.
Sheetreen and Turenne (2013), p. 6.
- 115.
Boies (2006), p. 62.
- 116.
Paulson (2013), p. 147.
- 117.
Philippe Sands, a well-known scholar and arbitrator, acknowledges the dangers of having individuals acting both as counsel and arbitrator. See Sands (2011).
- 118.
Scholars claim that judicial selection is highly politicised even in systems that provide tenure of appointment. According to this argument, judicial selection compromises judicial independence even in situations where adjudicators enjoy security of tenure. However, in systems that provide security of tenure, once appointed, the adjudicators decisions’ are purely internal and are protected by outside illegitimate influences. Therefore, in legal systems where judicial appointments are done on a case-by-case basis, the appointing authority is in a stronger position to influence the workings of the tribunal. See Voete (2003); Crawford (2003).
- 119.
Van Harten (2010a), p. 643.
- 120.
ibid. An appointing state would put forward an arbitrator who shares the political values and inclinations of that state. Mackenzie and Sands (2003), pp. 278 & 284.
- 121.
For a paper explaining independence at the systemic level rather than a particular adjudicator See Caron (2011).
- 122.
Schneiderman (2010), p. 403.
- 123.
This phenomenon was illustrated in the Loewen case. In this case, the tribunal referred to the viability of NAFTA’ and to the interests of the international investing community to reach a decision. See Loewen Group, Inc. and Raymond L. Loewen v. United States of America, ICSID Case No. ARB(AF)/98/3, para. 242.
- 124.
Corporate Europe Observatory (2012), ch. 2.
- 125.
Dezalay and Garth (1996), p. 194.
- 126.
Schultz and Dupont (2015), p. 1149.
- 127.
ibid, p. 1150.
- 128.
ibid, p. 1168.
- 129.
Van Harten (2010b), p. 443.
- 130.
ICSID Convention, Art. 57. Quiet illustratively, one tribunal held that the ICSID requirement that the lack of independence should be “manifest” necessitates that this lack of independence be objectively established. Accordingly, it is not sufficient to show an appearance of a lack of impartiality or independence. See OPIC Karimum Corporation v. The Bolivarian Republic of Venezuela, ICSID Case No. ARB/10/14, Decision on the Proposal to Disqualify Professor Philippe Sands Arbitrator, para. 45.
- 131.
See generally Judiciary of England and Wales (2013), chapters 2–3.
- 132.
The European Court of Human Rights took a strict view on judicial bias and impartiality. In particular, the Court held that even appearances may be of importance. What is at stake, according to the Court, is the confidence which the Courts in a democratic society must stimulate in the public. Accordingly, any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw from the panel. See Petur Thor v. Iceland, App. No. 39731/98, Judgment, para. 37.
- 133.
Buergenthal (2006), p. 130.
- 134.
For this criticism See Gottwald (2007), pp. 259–260. Recent trends illustrate that States have taken steps to express with greater certainty the obligation of States under IIAs, including clarifications as to the content of ‘expropriation’ and the FET standard. For example See the Canadian and US model model BITs.
- 135.
Alvarez (2006), p. 523.
- 136.
- 137.
Schill (2010), p. 157.
- 138.
Dyson (2004), p. 3.
- 139.
For a seminal book on judicial activism See Griffith (First Published 1977).
- 140.
John Locke claimed that one of the things individuals wish to avoid being subject to others incalculable decisions and opinions. See Locke (First Published 1689, 1956), p. 64.
- 141.
PSEG Global Inc et al v Turkey, ICSID Case No. ARB/02/05, para. 239.
- 142.
ibid, para 239.
- 143.
Sempra Energy International v. The Argentine Republic, ICSID Case No. ARB/02/16, para. 300.
- 144.
Sureda (2012), p. 9.
- 145.
United Nations Conference on Trade and Development (2012), p. 12.
- 146.
ibid.
- 147.
Lauterpacht (1958), p. 398.
- 148.
See generally Koskenniemi (1989), ch. 1.
- 149.
For a critique on Legal Certainty See Popelier (2008). In the same manner, Relja Radovic supports the idea that ‘total legalism’ is unattainable in the context of investment arbitration and as such it is a reality that should be lived with because it stems from the foundations of the international legal order, and is inherent to the system of international treaty arbitration. See Radovic (2018), p. 183.
- 150.
Stanford Encyclopedia of Philosophy (2016).
- 151.
VCLT, Art. 31.
- 152.
- 153.
Lanneau (2013), p. 16.
- 154.
Kurtz (2014), p. 274. The misapplication of the rules of interpretation was also heavily criticised by Michael Reisman and Mahnoush Arsanjani noting that although the provisions of the Vienna Convention are routinely and briefly referred to, they are not always applied. See Arsanjani and Reisman (2010), p. 598.
- 155.
In a similar fashion, Thomas Franck argued that harmonization in international investment law would contribute to greater fairness. See also Franck (1998), ch. 14.
- 156.
- 157.
Nigel Blackaby quoted in Goldhaber (2004).
- 158.
Van Harten (2010a), p. 131.
- 159.
Dunoff and Trachtman (2009), p. 13.
References
Allan TRS (2000) Constitutional justice: a liberal theory of the rule of law. Oxford University Press, Oxford
Allsop J (2017) International arbitration and conformity with international standards of due process and the rule of law. In: Menaker A (ed) International arbitration and the rule of law: contribution and conformity. Kluwer Law International, Alphen aan den Rijn
Alvarez JE (2006) International organizations as law-makers. Oxford University Press, Oxford, p 523
Arcuri A (2009) The great asymmetry and the rule of law in international investment arbitration. In: Sachs L et al (eds) Yearbook of international investment law and policy 2018. Oxford University Press, Oxford
Aristotle (2008) Politics: books 1 & 3. Cosimo Classics, New York, p 29 & 140
Arnold TW (1932) The role of substantive law and procedure in the legal process. Harv Law Rev 45(617):618
Arsanjani M, Reisman M (2010) Interpreting treaties for the benefit of third parties: the “Salvors Doctrine” and the use of legislative history in investment treaties. Am J Int Law 104(597):598
Atanasova D (2019) A rule of law view on the relations of international courts and tribunals. Temple Int Comp Law J 33(2):366
Bianchi A et al (2015) Interpretation in international law. Oxford University Press, Oxford
Bingham T (2010) The rule of law. Penguin Books, London, p 12
Boies D (2006) Judicial independence and the rule of law. Wash Univ J Law Policy 2(57):62
Brabandere E (2019) Human rights and foreign direct investment. In: Krajewski M, Hoffmann R (eds) Research handbook on foreign direct investment. Edward Elgar Publications, Cheltenham
Brown C (2010) Procedure in investment treaty arbitration and the relevance of comparative public law. In: Schill S (ed) International investment law and comparative public law. Oxford University Press, Oxford, p 662
Buergenthal T (2006) The proliferation of disputes, dispute settlement procedures and respect for the rule of law. ICSID Rev Foreign Invest Law J 21(1):130
Butler N, Musa S (2018) Systemizing human rights within investment arbitration. Am Rev Int Arbitr 28(4):445
Calamita J (2013) International human rights and the interpretation of international investment treaties-constitutional considerations. In: Baetens F (ed) The interaction of international investment law with other fields of public international law. Cambridge University Press, Cambridge, p 170
Caron D (2011) The independence and impartiality of legal systems. World Arbitr Mediation Rev 5:3
Chase P (2015) TTIP, investor-state dispute settlement and the rule of law. Eur View 14:2
Collins R (2019) Two Idea(l)s of the international rule of law. Global Constitutionalism 8:2
Costa P (2007) The rule of law: a historical introduction. In: Costa P, Zolo D (eds) The rule of law: history, theory and criticism. Springer Publications, New York, p 78
Craig P (1997) Formal and substantive conception of the rule of law: an analytical framework. West Law Public Law 467:1
Crawford J (2003) International law and the rule of law. Adelaide Law Rev 24:3
Cross F (2008) Judicial independence. In: Whittington K et al (eds) The Oxford handbook of law and politics. Oxford University Press, Oxford, p 558
Desierto D (2018) Shifting sands in the international economic system: ‘arbitrage’ in international economic law and international human rights. Georgetown J Int Law 49:3
Dezalay Y, Garth BG (1996) Dealing in virtue: international commercial arbitration and the construction of a transnational legal order. The University of Chicago Press, Chicago, p 194
Dicey AV (1958) Introduction to the study of the law of the constitution, 10th edn. Liberty Fund Publications, Carmel, p 202
Dieng A (1997) Role of judges and lawyers in defending the rule of law. Fordham Int Law J 21(2):550
Dunoff J, Trachtman J (2009) A functional approach to international constitutionalization. In: Dunnoff J, Trachtman J (eds) Ruling the World? Constitutionalism, international law and global governance. Cambridge University Press, Cambridge, p 13
Dworkin R (1985) A matter of principle. Harvard University Press, Cambridge, p 11
Dyson H (2004) Judicial activism and the rule of law. Otago Law Rev 10(493):3
Ekins R, Forsyth C (2015) Judging the public interest: the rule of law Vs the rule of courts. Judicial Power Project. judicialpowerproject.org.uk/wp-content/uploads/2016/10/judging-the-public-interest-.pdf. Accessed 1 May 2020
Fallon R (1997) The rule of law as a concept in constitutional discourse. Columb Law Rev 97(1):10
Foran M (2019) The rule of good law: form, substance and fundamental rights. Camb Law J 78(3):570–595, p. 26
Fortier LY (2009) Investment protection and the rule of law: change or decline?. ICCA Database, p 13. www.arbitration-icca.org/media/4/54271857323013/media0123927854601400732_001.pdf
Franck T (1998) Fairness in international law and institutions. Oxford University Press, Oxford, ch. 14
Franck S (2011) Rationalizing costs in investment treaty arbitration. Wash Univ Law Rev 88(4):775
Frandberg A (2014) From rechtsstaat to universal law - state: an essay in philosophical jurisprudence. Springer Publications, New York
Fuller L (1969) The morality of law. Yale University Press, London, p 153
Gaukrodger D (2017) Adjudicator compensation systems and investor-state dispute settlement. OECD Working Papers, p 11
Goldhaber MD (2004) Wanted: a world investment court, The American Lawyer
Gottwald E (2007) Leveling the playing field: is it time for a legal assistance center for developing countries in investment treaty arbitration. Am Univ Law Rev 22(2):259–260
Griffith JAG (1977) The politics of the judiciary, 5th edn. Fontana Press, London
Hansen R (2010) Parallel proceedings in investor – state treaty arbitration: responses for treaty – drafters, arbitrators and parties. Modern Law Rev 73:4
Hayek FA (2005) The road to serfdom. First Published 1944. Routledge Publications, Abingdon, p 75
Hayek F (2011) The constitution of liberty. First Published 1960. The University of Chicago Press, Chicago, pp 241–243
Hurd I (2015) The international rule of law and the domestic analogy. Global Const 14
International Law Association- Study Group (2016) The use of domestic principles in the development of international law. Johannesburg Conference, p 56
International Law Association in Sydney (2018) Draft report on the ‘Rule of Law and International Investment Law’ delivered at the annual conference of the International Law Association in Sydney
Isiksel T, Thies A (2013) Changing subjects: rights, remedies and responsibilities of individuals under global legal pluralism. Global Const 2:2
Judiciary of England and Wales (2013) Guide to judicial conduct, ch. 2–3
Kanetake M (2016) The interfaces between the national and international rule of law: a framework paper. In: Kanetake M, Nollkaemper A (eds) The rule of law at the national and international levels: contestations and deference. Hart Publishing, Oxford, p 10
Koskenniemi M (1989) From apology to Utopia: the structure of international legal argument. Cambridge University Press, Cambridge. ch. 1
Kurtz J (2014) Building legitimacy through interpretation in investor-state arbitration: on consistency, coherence and the identification of applicable law. In: Douglas Z et al (eds) The foundation of international investment law: bringing theory into practice. Oxford University Press, Oxford, p 274
Lanneau R (2013) What is legal certainty? A theoretical essay. SSRN Database, p. 16. papers.ssrn.com/sol3/papers.cfm?abstract_id=2361630
Lauterpacht H (1958) Development of international law by the international court, being revised edition of the development of international law by the permanent court of international justice. Stevens, p 398
Locke J (1956) Two treatises of government and a letter concerning toleration. First Published 1689. Dover Publications, New York, p 64
Lord Neuberger (2015) Arbitration and the rule of law. Speech at the Chartered Institute of Arbitrators. www.supremecourt.uk/docs/speech-150320.pdf
Loughlin M (2010) Foundations of public law. Oxford University Press, Oxford, p 324
Mackenzie R, Sands P (2003) International courts and tribunals and the independence of the international judge. Harv Int Law J 44:278 & 284
Maravall J (2003) Democracy and the rule of law. In: Maravall JM, Przeworski A (eds) Democracy and the rule of law. Cambridge University Press, Cambridge, pp 264–265
Maxeiner J (2007) Legal certainty and legal methods: a european alternative to American legal indeterminacy? Univ Baltimore Law:572
McCorquodale R (2016) Defining the international rule of law: defying gravity? Int Comp Law Q 65:296–303
Miller F (2010) The rule of law in ancient Greek thought. In: Sellers M, Tomaszewski T (eds) The rule of law in comparative perspective. Springer Publications, New York
Monika H, Theresa R (2016) The rule of law in global governance. Palgrave Publications, London
Montesquieu B (2007) Spirit of laws, p 150
Montt S (2009) State liability and investment treaty arbitration: global constitutional and administrative law in the BIT generation. Hart Publishing, New York
Nyegaard Mollestad C (2014) See no Evil? Procedural transparency in international investment law and dispute settlement. PluriCourts Research Paper No. 14–20, p 38
O’Connor S (2018) Defining access to justice in international arbitration. Oxford Online. oxia.ouplaw.com/page/defining-access-to-justice
OECD Investment Committee (2005) Transparency and third party participation in investor-state dispute settlement procedure. OECD Investment Division
Office of the UN High Commissioner For Human Rights (2005) In: Office of the UN High Commissioner For Human Rights (ed) Economic, social and cultural rights: a handbook for national human rights institutions. UNDP, New York, p 4
Ohler C (2017) Democratic legitimacy and the rule of law in investor-state dispute settlement under CETA. In: Bungenberg M et al (eds) European yearbook of international economic law 2017. Springer Publications, New York
Ostwald M (1986) From popular sovereignty to the sovereignty of law: law, society and politics in fifth-century athens. University of California Press, Berkeley, p 497
Paulson (2013) The idea of arbitration. Oxford University Press, Oxford, p 232
Pauwelyn J (2015) The rule of law without the rule of lawyers? Why investment arbitrators are from mars, trade adjudicators are from venus. Am J Int Law 109:761–805
Popelier P (2008) Five paradoxes on legal certainty. Legisprudence 2:47–66
Posner RA (1983) The meaning of judicial self- restraint. Indiana Law J 59:1
Prislan V (2012) Non-investment obligations in investment treaty arbitration - toward a greater role for states. In: Baetens F (ed) Investment law within international law: an internationalist perspective. Cambridge University Press, Cambridge, p 451
Puig S, Shaffer G (2018) Imperfect alternatives: institutional choice and the reform in investment law. Am J Int Law 112:361
Radin M (1947) The Myth of the Magna Carta. Harv Law Rev 60(7):1060–1061
Radovic R (2018) Inherently unneutral investment treaty arbitration: the formation of decisive arguments in jurisdictional determinations. J Disp Resol 1:183
Raz J (1979) The s. Oxford University Press, Oxford, p 211
Reinisch A (2016) The rule of law in international investment arbitration. In: Papartzis P et al (eds) Reconceptualizing the rule of law in global governance, resources, investment and trade. Hart Publishing, Oxford
Report by the Venice Commision on Human Rights (2011) www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2011)003rev-e. Accessed 10 May 2020
Rosert D (2014) The stakes are high: a review of the financial costs of investment treaty arbitration. International Institute for Sustainable Development, Winnipeg, p 15
Salacuse J (2007) Is there is a better way? Alternative methods for treaty-based investor-state dispute resolution. Fordham Int Law J 31(138):142
Sands P (2011) Conflict and conflicts in investment treaty arbitration: ethical standards for counsel. In: Rovine A (ed.) Contemporary issues in international arbitration and mediation: the fordham papers
Scalia A (1989) The rule of law as a law of rules. Univ Chicago Law Rev 56:4
Schacherer S (2018) Independence and impartiality of arbitrators: a rule of law analysis. University of Geneva Working Papers
Schefer K (2016) International investment law: text, cases and materials, 2nd edn. Elgar Publications, Camberley
Schill S (2010) Fair and equitable treatment, the rule of law and comparative public law. In: Schill S (ed) International investment law and comparative public law. Oxford University Press, Oxford, p 157
Schill S (2015) International investment law and the rule of law. In: Lowell J et al (eds) Rule of law symposium 2014: the importance of the rule of law in promoting development. Singapore Academy Publishing, Singapore
Schill S (2017) Reforming investor - state dispute settlement: a (comparative and international) constitutional law framework. J Int Econ Law:10
Schneiderman D (2010) Judicial politics and international investment law: seeking an explanation of conflicting outcomes. Northwest J Int Law Bus 30(383):403
Schultz T (2014) Against consistency in investment arbitration. In: Douglas Z et al (eds) The foundations of international investment law: bringing theory into practice. Oxford University Press, Oxford
Schultz T, Dupont C (2015) Investment arbitration: promoting the rule of law or over-empowering investors? A quantitative empirical study. Eur J Int Law 25(4):1149
Sheetreen S, Turenne S (2013) Judges on trial: the independence and accountability of the English judiciary, 2nd edn. Cambridge University Press, Cambridge, p 6
Shirlow E (2017) Three manifestations of transparency in international investment law: a story of sources, stakeholders and structures. Goettingen J Int Law 8:98
Shokouh H (2014) Power in investor-state arbitration. King’s College London Thesis Repository, ch. 4
Smithers W (1902) The German Civil Code. The American law register. University of Pennsylvania, Pennsylvania, pp 689–690
Stanford Encyclopedia of Philosophy (2016) The rule of law. plato.stanford.edu/entries/rule-of-law/. Accessed 1 May 2020
Steininger S (2018) What’s human rights got to do with it? An empirical analysis of human rights references in investment arbitration. Leiden J Int Law 31:45–46
Stern B (2009) Civil society’s voice in the settlement of international economic disputes. ICSID Rev 22(2):347
Sureda AR (2012) Investment treaty arbitration: judging under uncertainty. Hersch Lauterpacht Memorial Lectures. Cambridge University Press, Cambridge, p 9
Sweet AS (2014) The evolution of international arbitration: delegation, judicialization, governance. In: Mattli W, Dietz T (eds) International arbitration and global governance: contending theory and evidence. Oxford University Press, Oxford, pp 33–35
Tamanaha BZ (2004) On the rule of law: history, politics, theory. Cambridge University Press, Cambridge, p 8
The Magna Carta, (The British Library). www.bl.uk/magna-carta/articles/magna-carta-an-introduction
Tobias Stoll P (2018) International investment law and the rule of law. Goettingen J Int Law 9:1
Ulrich Petersmann E (2009) International rule of law and constitutional justice in international investment law and arbitration. Indiana J Global Legal Stud 16(2):523–526
UN Economic and Social Council, Definition of basic concepts in governance and public administration, E/C.16/2006/4 (2006), para. 49
United Nations - Office of the High Commissioner for Human Rights (2003) Human rights in the administration of justice: a manual on human rights for judges, prosecutors and judges, ch. 4
United Nations Commision on Human Rights (2003) Human rights, trade and investment, U.N. Doc E/CN.4/Sub.2/2003/9 documents-dds-ny.un.org/doc/UNDOC/GEN/G03/148/47/PDF/G0314847.pdf?OpenElement. Accessed 20 Apr 2020
United Nations Commision on International Trade Law (2010) Report of Working Group II (Arbitration and Conciliation) A/CN.9/712, pp 9–10
United Nations Conference on Trade and Development (2012) Fair and equitable treatment: a series, series on issues in international investment agreements II, p 12
United Nations General Assembly (2012) Delivering justice: programme of action to strengthen the rule of law at the national and international levels (Report of the Secretary-General, A/66/749), para. 2
Van Caenegem RC (1996) An historical introduction to private law. Cambridge University Press, Cambridge, p 73
Van Harten G (2010a) Investment treaty arbitration, procedural fairness, and the rule of law. In: Schill S (ed) International investment law and comparative public law. Oxford University Press, Oxford, p 628
Van Harten G (2010b) Perceived bias in investment treaty arbitration. In: Waibel M et al (eds) The backlash against investment arbitration: perceptions and reality. Kluwer Law International, Alphen aan den Rijn, p 443
Voete E (2003) The politics of international judicial appointments. Chicago J Int Law 9:2
Waibel M (2011) International investment law and treaty interpretation. In: Hofmann R, Tams C (eds) International investment law and general international law-from clinical isolation to systematic integration. Nomos Publications, Baden-Baden
Waldon J (2002) Is the rule of law an essentially contested concept (in Florida)? Law Philos 21:137
Weber M (1978) Economy and society: an outline of interpretive sociology. University of California Press, Berkeley
Zolo D (2007) The rule of law: a critical reappraisal. In: Costa P, Zolo D (eds) The rule of law: history, theory and criticism. Springer Publications, New York, p 18
Author information
Authors and Affiliations
Rights and permissions
Copyright information
© 2021 The Author(s), under exclusive license to Springer Nature Switzerland AG
About this chapter
Cite this chapter
Dionysiou, K. (2021). Investment Treaty Arbitration and the Rule of Law: Tensions and Solutions. In: CETA's Investment Chapter. European Yearbook of International Economic Law(), vol 13. Springer, Cham. https://doi.org/10.1007/978-3-030-66992-8_3
Download citation
DOI: https://doi.org/10.1007/978-3-030-66992-8_3
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-030-66991-1
Online ISBN: 978-3-030-66992-8
eBook Packages: Law and CriminologyLaw and Criminology (R0)