Investment Tribunals and the Commercial Arbitration Model: Mixed Procedures and Creeping Institutionalization
SUSTAINABLE DEVELOPMENT IN WORLD TRADE LAW, Gehring, Mark and Cordonier Segger, Marie-Claire, eds., pp. 577-591, The Hague: Kluwer Law International, 2005
15 Pages Posted: 1 Feb 2009
Date Written: January 1, 2005
International investment protection instruments, the most ubiquitous of which is the bilateral investment treaty (BIT), systematically provide for the right of a foreign investor to claim directly against a host state for violations of treaty protections. Investors have been granted the right to bring claims to an arbitral tribunal constituted under one of various sets of international arbitration rules that are strongly inspired by commercial arbitration rules, such as the International Centre for the Settlement of Investment Disputes (ICSID) Rules and the ICSID Additional Facility Rules. Other sets of rules mentioned in investment protection instruments were designed for commercial arbitration and were simply enrolled, without much ado, in the resolution of investment disputes. Adressing institutionalization, precedent setting, transparency and legitimacy, this book chapter looks at some of the most difficult issues raised by the import of the commercial arbitration model into the realm of treaty-based investment disputes.
Keywords: Investment arbitration, ICSID, Commercial arbitration, UNCITRAL, Precedent, Persuasive Authority, Transparency, Confidentiality, Institutionalization
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