The Arbitrator as a Lawmaker: Jurisgenerative Processes in Investment Arbitration

Journal of World Investment & Trade 14 (5), 2013, p. 829-851

21 Pages Posted: 4 Apr 2016 Last revised: 10 Apr 2020

See all articles by Catharine Titi

Catharine Titi

CNRS; University Paris II Panthéon-Assas

Date Written: 2013

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

Suggested Citation

Titi, Catharine, The Arbitrator as a Lawmaker: Jurisgenerative Processes in Investment Arbitration (2013). Journal of World Investment & Trade 14 (5), 2013, p. 829-851, Available at SSRN: https://ssrn.com/abstract=2758113 or http://dx.doi.org/10.2139/ssrn.2758113

University Paris II Panthéon-Assas ( email )

CERSA, 12 place du Panthéon
Paris, 75005
France

HOME PAGE: http://catharinetiti.com

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