Abstract

http://ssrn.com/abstract=1466980
 
 

Citations (1)



 
 

Footnotes (214)



 


 



Investor-State Arbitration as Governance: Fair and Equitable Treatment, Proportionality and the Emerging Global Administrative Law


Benedict Kingsbury


New York University School of Law

Stephan W. Schill


Max Planck Institute for International Law

September 2, 2009

NYU School of Law, Public Law Research Paper No. 09-46

Abstract:     
Investor-State arbitration is not only a mechanism to settle disputes between an investor and a State arising out of an investment, it is also a form of global governance that involves the exercise of power by arbitral tribunals in the global administrative space. In setting standards for State conduct vis-à-vis foreign investors, for example in defining what is improper administration or a violation of due process under fair and equitable treatment, tribunals set standards which may influence future conduct by the respondent State and other States, and will very likely influence the decision-making of tribunals in other cases. In settling disputes between investors and States, the tribunals also act as pre-agreed review agencies of a State’s specific actions, in some cases applying proportionality analysis or other tools of public law review when confronted with difficult balances between investor protection and the State’s environmental or economic policy choices in the wider public interest. In these respects, investor-State arbitration forms part of a governance structure, and helps constitute and shape the emerging body of global administrative law. At the same time, this regulatory activity of arbitral tribunals attracts significant criticism, not only of specific decisions but with regard to the legitimacy of the decision-making powers of these tribunals as such. This paper argues that these concerns can be addressed, at least in part, by application of principles of the emerging global administrative law to, and by, these tribunals.

Number of Pages in PDF File: 56

working papers series


Download This Paper

Date posted: September 3, 2009  

Suggested Citation

Kingsbury, Benedict and Schill, Stephan W., Investor-State Arbitration as Governance: Fair and Equitable Treatment, Proportionality and the Emerging Global Administrative Law (September 2, 2009). NYU School of Law, Public Law Research Paper No. 09-46. Available at SSRN: http://ssrn.com/abstract=1466980 or http://dx.doi.org/10.2139/ssrn.1466980

Contact Information

Benedict Kingsbury (Contact Author)
New York University School of Law ( email )
40 Washington Square South
New York, NY 10012-1099
United States
212-998-6278 (Phone)
Stephan W. Schill
Max Planck Institute for International Law ( email )
Im Neuenheimer Feld 535
69120 Heidelberg, 69120
Germany
HOME PAGE: http://www.mpil.de
Feedback to SSRN


Paper statistics
Abstract Views: 3,637
Downloads: 948
Download Rank: 11,563
Citations:  1
Footnotes:  214

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo7 in 0.406 seconds