What Roles Can Constitutional Law Play in Investment Arbitration?

Journal of World Investment & Trade, vol. 15(5-6) (2014), pp. 862-888.

27 Pages Posted: 13 Jul 2016

See all articles by Laurence Boisson de Chazournes

Laurence Boisson de Chazournes

University of Geneva - Faculty of Law - Department of Public International Law; Graduate Institute of International and Development Studies (IHEID) - Geneva Center for International Dispute Settlement (CIDS)

Brian McGarry

Geneva LL.M. in International Dispute Settlement (MIDS), a joint programme of the Graduate Institute of International and Development Studies and the University of Geneva Law Faculty

Date Written: November 1, 2014

Abstract

Interplays between international and domestic legal spheres have attracted increased attention in investor-State dispute settlement. From the treaty ratification process to award execution, constitutional norms play recurring roles before, during and after investment arbitrations. This contribution deals with the manner in which parties to such disputes can rely upon constitutional law or, more broadly speaking, domestic law. Notably, major hurdles to the application of domestic law in transnational fora have not necessarily constrained the arbitral profile of constitutional principles. This is because they may gain prominence through informal paths. Rather than directly applying constitutional law per se, tribunals may utilize other paths such as deferring to domestic interpretations of constitutional principles, or to constitutional procedures that appear, for example, to protect fair and equitable treatment. Reexamining recent case law through this lens of informal application, we can then envision other synergies that intermingle these regimes.

Keywords: investment arbitration, constitutional law, informal application, deference

JEL Classification: K33

Suggested Citation

Boisson de Chazournes, Laurence and McGarry, Brian, What Roles Can Constitutional Law Play in Investment Arbitration? (November 1, 2014). Journal of World Investment & Trade, vol. 15(5-6) (2014), pp. 862-888.. Available at SSRN: https://ssrn.com/abstract=2808253

Laurence Boisson de Chazournes

University of Geneva - Faculty of Law - Department of Public International Law ( email )

Geneva
Switzerland

Graduate Institute of International and Development Studies (IHEID) - Geneva Center for International Dispute Settlement (CIDS)

Villa Moynier
Rue de Lausanne 120b
Geneva, 12011
Switzerland

Brian McGarry (Contact Author)

Geneva LL.M. in International Dispute Settlement (MIDS), a joint programme of the Graduate Institute of International and Development Studies and the University of Geneva Law Faculty ( email )

Villa Moynier
Rue de Lausanne 120 B
Geneva, 1211
Switzerland

HOME PAGE: http://www.mids.ch/the-school/directors-staff.html

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