The Arbitrator as a Lawmaker: Jurisgenerative Processes in Investment Arbitration

Abstract

With the exponential growth of international adjudication fora and of the number of known disputes submitted to them, the international system of investment dispute resolution has taken centre stage and has been placed in a unique position from which to formulate international investment law. At the heart of this system, the arbitrator possesses considerable ‘jurisgenerative’ powers that span over different aspects of the rules governing investment, from treaty provisions relating to jurisdictional and substantive standards to the interpretation of relevant rules of customary international law and the development of new treaty models. The article considers this de facto role of the arbitrator in investment rule-setting by canvassing arbitral interpretation as a jurisgenerative process per se, and by exploring its impact on future treatymaking.

Keywords: investment arbitration, ISDS, arbitral activism, new generation investment agreements, arbitral lawmaking, MFN, Maffezini, Abaclat

JEL Classification: F02, F13, F21, F53, K41, K39, K40, K10, K33, K49, K12, K19, K20, K29, H70, E22, H87, F50, F52