Deference in Investment Treaty Arbitration: Re-Conceptualizing the Standard of Review Through Comparative Public Law
28 Pages Posted: 30 Jun 2012
Date Written: June 28, 2012
The standard of review to be applied by investment treaty tribunals when reviewing host state conduct is a crucial, but still insufficiently analyzed issue. Although tribunals frequently make reference to “deference” as the applicable standard, the criteria they apply to concretize that concept remain uncertain and little predictable. What is more, the conceptual foundations of granting deference to host states are opaque. The present paper focuses on these foundations and argues that they are intrinsically connected to how investment treaty arbitration is qualified as either a form of commercial arbitration, a means to settle disputes under public international law, or as an internationalized form of judicial review in public law disputes. Siding with the latter, the present paper proposes to conceptualize the standard of review within a separation of powers framework that fuses domestic and international legal considerations in allocating power between states and arbitral tribunals. Within this framework, considerations originating from both international dispute settlement and comparative public law interact to determine and concretize the standard of review.
Keywords: investment treaties, investment treaty arbitration, regulatory measures, review, standard of review, deference, comparative public law, separation of powers, international dispute settlement
JEL Classification: F02, F10, F20, F30, F40
Suggested Citation: Suggested Citation