International Commercial Arbitration v International Investment Arbitration: Similar Game but Somehow Different Rules
15 Pages Posted: 7 Dec 2018
Date Written: March 1, 2018
Provided the relatively recent nature of international investment arbitration (IIA) compared to international commercial arbitration (ICA), one intuitively seeks for analogies and associations between these two forms of international arbitration. I argue that IIA has gradually detached itself from ICA and is developing a practice both independent and similar to ICA.
The potential impact of the arbitral proceedings on a country’s public interest urges for a different approach and mind-set. Therefore a tendency in IIA towards more transparency and more substantial coherence seems justified. Particular attention should be given to the position of an individual arbitrator in relation to the broader arbitral system it is part of. This arbitral system viz. enhances the need for a clearly-motivated award (cfr. international best practice) and entails strict integrity requirements for individual arbitrators.
These tendencies in IIA, fostered through public policy considerations, are nonetheless not unique to IIA and might in fact simultaneously (start to) influence ICA. I therefore contend IIA and ICA to cross-fertilize each other. In any event both forms of international arbitration need to be constantly aware of (potential) challenges regarding legitimacy and accountability.
Suggested Citation: Suggested Citation