Reviewing the Use of “Soft Law” in Investment Arbitration

Vol. 7.2 European International Arbitration Review

NYU School of Law, Public Law Research Paper No. 18-46

70 Pages Posted: 3 Oct 2018

See all articles by José E. Alvarez

José E. Alvarez

New York University School of Law

Date Written: September 1, 2018

Abstract

This essay surveys the extent to which instruments, such as those issued by the International Bar Association for use in arbitration that are not included in the formal sources of international law, are relied upon in investor-state arbitration. It considers the difficulties of defining what some call ‘soft’ or ‘informal’ law, of empirically measuring the extent to which arbitrators resort to it, and of determining whether its use is consistent with the accepted rules of treaty interpretation. It canvasses the significance of soft law in two recent rulings, Urbaser v. Argentina and Philip Morris v. Uruguay. The author, who previously has addressed the use of European human rights and trade law in investor-state arbitrator, reviews the pros and cons of this particular kind of ‘boundary crossing.’ He concludes that it is as yet too early to say whether resort to soft law will ameliorate or worsen the perceived ‘legitimate deficits’ of the investment regime.

Suggested Citation

Alvarez, José Enrique, Reviewing the Use of “Soft Law” in Investment Arbitration (September 1, 2018). Vol. 7.2 European International Arbitration Review; NYU School of Law, Public Law Research Paper No. 18-46. Available at SSRN: https://ssrn.com/abstract=3258737

José Enrique Alvarez (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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