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Seeing the Forest Without the Trees – The Doubtful Case for Proportionality Analysis in International Investment Arbitration

Highly Commended Essay, Society of International Economic Law/Cambridge University Press Essay Prize 2011

19 Pages Posted: 14 Sep 2011 Last revised: 31 Jul 2017

Benedikt Pirker

University of Fribourg; HSG University of St. Gallen

Date Written: September 12, 2011

Abstract

Proportionality analysis has been positioned in the academic debate as intrinsically linked to constitutional regimes and the specific structure of fundamental rights. The present contribution takes up the arguments developed in other fields of law and examines their validity in the context of investor-state arbitration. Rejecting the conceptualization of investment arbitration as a developing constitutional regime, the author suggests that the conceptual foundations for using proportionality analysis are shaky, both based on the nature of the rights typically enshrined in bilateral investment treaties and on the features of investment arbitration. A subsequent overview of the case law brings to light that arbitral tribunals to date have shied away from relying extensively on proportionality analysis and have only paid lip service to the concept on a rather limited number of occasions. Future case law, it is suggested, should thus rather focus on the development of appropriate criteria for each treaty provision instead of opting for balancing approaches.

Keywords: international investment law, investment arbitration, proportionality, balancing

Suggested Citation

Pirker, Benedikt, Seeing the Forest Without the Trees – The Doubtful Case for Proportionality Analysis in International Investment Arbitration (September 12, 2011). Highly Commended Essay, Society of International Economic Law/Cambridge University Press Essay Prize 2011. Available at SSRN: https://ssrn.com/abstract=1926166

Benedikt Harald Pirker (Contact Author)

University of Fribourg ( email )

Institute for European Law
Avenue de Beauregard 11
Fribourg, 1700
Switzerland
0041263008362 (Phone)
0041263009776 (Fax)

HOME PAGE: http://www.unifr.ch/ius/euroinstitut_de/ueber_uns/team/team_mitarbeitende

HSG University of St. Gallen ( email )

Bodanstrasse 6
St Gallen, 9000
Switzerland

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