Determining the Appropriate Level of Deference for Domestic Court Reviews of Investor-State Arbitral Awards
24 Pages Posted: 3 Oct 2007
Judicial review of investor-state arbitral awards is often performed by domestic courts that are unfamiliar with issues of treaty interpretation and international law. According to international law, the grounds for review of international arbitral awards are in theory quite narrow. Nevertheless, a review of three decisions from Canadian courts suggests that Canadian domestic courts have construed the grounds for review broadly enough to allow them to review the merits of international arbitral awards.
In general, domestic courts may not be well-equipped to grapple with international arbitral awards. These courts often view their role as that of supervising international tribunals in the way that they supervise domestic tribunals. This article argues that domestic courts should primarily act as enforcers of international arbitral awards, interfering only in cases of egregious error. This high level of deference will encourage international commercial activity, further the harmonization of international arbitration laws, and provide for greater certainty in international business transactions.
Keywords: investment, international arbitration, judicial review
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