The International Investment Arbitrator's Duty to Apply the Law

(2018) 17(1) The Law and Practice of International Courts and Tribunals 160-177

22 Pages Posted: 7 Dec 2018

See all articles by Joshua Karton

Joshua Karton

Queen's University Faculty of Law; National Taiwan University - College of Law

Date Written: July 1, 2018

Abstract

This article explores the sources, nature, and implications of an arbitrator’s duty to decide according to the governing law in investor-state arbitrations. It advances a contractarian conception of arbitral authority in investor-state arbitration, whereby the agreement of the states parties to the investment treaty is the source of both the arbitrator’s power to make decisions and the primary constraint on that power: the duty to apply the law. It argues that the choice of law provisions in investment treaties have a constitutional character for arbitral tribunals, such that a failure to apply the chosen law constitutes an excess of the tribunal’s powers which, if manifest, justifies annulment or non-enforcement of the award. The article concludes by considering the implications of this contractarian theory of arbitral powers and duties for arbitrators, disputing parties, and states seeking to reassert control over the investor-state dispute settlement system.

Note: For a different version of this argument made in somewhat greater detail, see Joshua Karton, "Choice of Law and Interpretive Authority in Investor-State Arbitration" (2017) 3(1) Canadian Journal of Comparative and Contemporary Law 1-52

Keywords: international law, international economic law, international arbitration, investor-state dispute settlement, international legal theory

Suggested Citation

Karton, Joshua, The International Investment Arbitrator's Duty to Apply the Law (July 1, 2018). (2018) 17(1) The Law and Practice of International Courts and Tribunals 160-177. Available at SSRN: https://ssrn.com/abstract=3207643

Joshua Karton (Contact Author)

Queen's University Faculty of Law ( email )

Macdonald Hall
128 Union St.
Kingston, Ontario K7L3N6
Canada

National Taiwan University - College of Law ( email )

No.1, Sec.4, Roosevelt Road
Taipei, 10617, 10617
Taiwan

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