Investment Arbitration, Investment Treaty Interpretation, and Democracy

4(2) (2015) Cambridge Journal of International and Comparative Law, Forthcoming

21 Pages Posted: 30 Sep 2015

Date Written: September 15, 2015

Abstract

It has become a widespread concern in recent years that there exist frictions between international investment law and arbitration and democratic governance. In particular, investor-state tribunals can issue awards that may reverse, de iure or de facto, decisions by democratically legitimated and democratically accountable domestic decision-makers that are deemed pivotal, by those decision-makers, for the pursuit of the public interest of their constituency. The pressure on domestic and regional decision-makers to find responses to such frictions, through treaty-drafting or otherwise, has increased considerably in recent years and arguably has led to a shift in the official policy of traditional proponents of the established system of international investment law and arbitration. This paper explores the potential and the pitfalls of democracy as an argumentative topos informing our view on investment arbitration and the interpretation of International Investment Agreements (IIAs), with a specific focus on the allocation of interpretive authority among the Contracting Parties, the investor-state and the state-state tribunals.

Keywords: investment arbitration, treaty interpretation, sovereignty, interpretive authority, democratic legitimacy

JEL Classification: K33

Suggested Citation

Kulick, Andreas, Investment Arbitration, Investment Treaty Interpretation, and Democracy (September 15, 2015). 4(2) (2015) Cambridge Journal of International and Comparative Law, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2666473

Andreas Kulick (Contact Author)

University of Tuebingen ( email )

Wilhelmstr. 19
72074 Tuebingen, Baden Wuerttemberg 72074
Germany

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