Some Comments on Recent Proposals to Legitimize Investment Treaty Arbitration by Improving the Quality of Reasoning in Arbitral Awards

14 Pages Posted: 20 Jun 2014 Last revised: 31 Aug 2017

See all articles by Joshua Paine

Joshua Paine

University of Bristol - School of Law

Date Written: June 17, 2014

Abstract

This paper explores some key issues arising from so-called system-internal reform proposals – proposals which aim to (partly) answer investment law’s legitimacy crisis by influencing changes in arbitral reasoning so that investment arbitration is undertaken in more acceptable ways. To be clear, I agree that there will be a need for system-internal reform in addition to whatever wider changes may occur to the contemporary investment regime. This reflects that a large-number of ‘old-style’ investment agreements will remain in force and need to be applied in acceptable ways. My aim in raising the following questions is to strengthen internal-reform proposals and also highlight some of their limits. After some initial, general remarks regarding what can be expected of legal reasoning, the paper has two main parts. First I argue that certain doctrinal techniques drawn upon by internal-reform authors – such as such interpretation according to the VCLT provisions or the extraction of general principles and their in interpreting treaties – are themselves highly contested methodologies which seem likely to lead to further questions and disagreement, rather than a situation where losing or other interested parties are convinced by the quality of legal reasoning deployed in awards. Second, I argue that implicit in internal-reform proposals is a crucial and controversial question of who arbitral reasoning should be more persuasive to, and that while well-known disagreements persist over the relevant audience for investment arbitration, the task of building widely-perceived legitimacy through arbitral reasoning will remain difficult.

Please note the ideas contained in this working paper were substantially further developed in my article ‘The Project of System-Internal Reform in International Investment Law: An Appraisal’ (2015) Journal of International Dispute Settlement, Vol. 6(2), p. 332-354.

Suggested Citation

Paine, Joshua, Some Comments on Recent Proposals to Legitimize Investment Treaty Arbitration by Improving the Quality of Reasoning in Arbitral Awards (June 17, 2014). Fourth Biennial Global Conference of the Society of International Economic Law, July 10-12, 2014, SIEL Working Paper No. 2014/16, Available at SSRN: https://ssrn.com/abstract=2455992 or http://dx.doi.org/10.2139/ssrn.2455992

Joshua Paine (Contact Author)

University of Bristol - School of Law ( email )

University of Bristol,
Senate House, Tyndall Avenue
Bristol, BS8 ITH
United Kingdom

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