Investor-State Dispute Settlement in TTIP from the Perspective of a Public Law Theory of International Adjudication

Abstract

The article provides an assessment of the European Commission’s recent proposal for reform in investor-state dispute settlement (ISDS) under the Trans-Atlantic Trade and Investment Partnership (TTIP). It does so on the basis of a public law theory of international adjudication that presents international courts and tribunals as multifunctional actors who exercise public authority and therefore require democratic legitimacy. The article introduces this understanding against the background of other, traditional basic conceptions of international courts and tribunals. It then focuses on the prospects of appellate review and politico-legislative input under the European Commission’s proposal for TTIP, as well as on the provisions pertaining to the arbitrators, the judicial process, and the judicial decisions. While the net merits of ISDS in the Trans-Atlantic context are uncertain, the article submits that the European Commission’s proposal provides, in principle, a welcome response to some of the more egregious shortcomings of investor-state arbitration.

Keywords: Investor-state dispute settlement; International public authority; Trans-Atlantic Trade and Investment Partnership; Investment law reform; Judicial functions; Democratic legitimacy

JEL Classification: K33