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A Case for an International Investment Court

46 Pages Posted: 30 Jun 2008 Last revised: 10 Jul 2008

Gus Van Harten

York University - Osgoode Hall Law School

Date Written: June 30, 2008

Abstract

The article elaborates on the lack of objective guarantees of independence and impartiality in the existing system of investment treaty arbitration. This founds a case for an international investment court to replace the existing system. The argument proceeds in three steps: (1) investment treaty arbitration is uniquely a form of public law adjudication, constituted at the international level; (2) as constituted it does not satisfy standards of independence and impartiality in public law adjudication; and (3) various reasons that might be offered to justify this failing are unsatisfactory in light of the importance of these standards. For this reason, states should be encouraged to establish an international investment court in accordance with well-known principles of judicial decision-making. Above all, alternatives to the existing system should be measured against the criteria that typically apply in public law, especially the related principles of openness and independence. Absent these criteria being met, one does not have a system that depoliticizes disputes and subjects them to the rule of law, or that warrants the utmost respect of all parties, above all developing states.

Keywords: International investment court, Investment treaty arbitration, Public law adjudication, International adjudication, Settlement of investment disputes, ICSID

JEL Classification: F02, F10, F13, F14, F15, K33

Suggested Citation

Van Harten, Gus, A Case for an International Investment Court (June 30, 2008). Society of International Economic Law (SIEL) Inaugural Conference 2008 Paper. Available at SSRN: https://ssrn.com/abstract=1153424 or http://dx.doi.org/10.2139/ssrn.1153424

Gus Van Harten (Contact Author)

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada
416 650 8419 (Phone)

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