On Genealogy of Proposals to Reform Investor-State Arbitration

The Transnational Dispute Management Journal, TDM 1 (2014)

12 Pages Posted: 24 Jan 2014

See all articles by Dr Ahmad Ghouri

Dr Ahmad Ghouri

Sussex Law School, University of Sussex; University of Turku

Date Written: December 22, 2013

Abstract

Investor-State arbitration cases involving public interest regulation have been understood as struggles between advocates of the free movement of investment capital, such as multinational corporations, and environmental or human rights interest groups. The critical questions have been framed as follows: should the competing values and interests in public interest regulatory disputes be reconciled through investor-State arbitration? Should arbitrators be permitted to incorporate non-investment international norms into investment law and interpret investment treaties by applying international law generally? Is the development of international law better served by States, as representatives of their peoples, determining the balance of protection and costs by concluding consensual agreements through political processes? These are questions of institutional competence and democratic legitimacy, the allocation of decision making authority among States and the various available investor-State arbitration rules and institutions. The manner in which these questions have been addressed in the existing literature suggests a genealogy based on the following three “models” of how public interest issues might be integrated into investor-State arbitration: 1) the contract model; 2) the institutional capacity building model; and 3) the arbitral activist model. The primary argument of this paper is that the first two models, namely the contract model and the institutional capacity building model, eventually fall-back on the third model, namely the arbitral activist model, implicating arbitral activism and necessitating that the investor-State arbitral system develops indigenous principles of systemic self-governance.

Suggested Citation

Ghouri, Ahmad Ali, On Genealogy of Proposals to Reform Investor-State Arbitration (December 22, 2013). The Transnational Dispute Management Journal, TDM 1 (2014), Available at SSRN: https://ssrn.com/abstract=2383190

Ahmad Ali Ghouri (Contact Author)

Sussex Law School, University of Sussex ( email )

Falmer
Brighton BN1 9QN
United Kingdom

HOME PAGE: http://www.sussex.ac.uk/lps/internal/people/law/person/337963

University of Turku ( email )

Turku, 20014
Finland

HOME PAGE: http://www.utu.fi

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