Investment Arbitration As Constitutional Law: Constitutional Analogies, Linkages, and Absences
Thomas Schultz and Frederico Ortino (eds.), Oxford Handbook of International Arbitration (Forthcoming)
25 Pages Posted: 28 Dec 2018 Last revised: 3 Jun 2019
Date Written: December 12, 2018
This chapter examines analogies and linkages between investment arbitration and judicial review under national constitutions. The implications of constitutional analogizing are examined from both a functional and normative point of view. In the first part, two modes of constitutional analogizing are identified. ‘Project’ and ‘critical’ modes are offered as heuristics for understanding the constitution-like functions performed by investment arbitrators in the course of interpreting substantive treaty protections. Adopting a critical mode reveals numerous problems that investment arbitration chooses to remain silent about, including a version of the separation of powers that is difficult to defend from a constitutional angle. The second part evaluates the performance of investment arbitrators in a few instances where tribunals have directly engaged with national constitutional law in the course of issuing reasons. The focus in on how tribunals handle interpretation of constitutional texts and high court rulings as law applicable or relevant to an investment dispute. These exercises in constitutional engagement, it is argued, turn out to be less than satisfactory. Finally, in the last part, a significant defect in constitutional analogizing is confronted: that the ‘people’ are absent from its account. The suggestion that international courts, and investment arbitration in particular, serve as constituent authority in the absence of a polity is examined and critically assessed. The chapter concludes by arguing that investment arbitration will continue to be of doubtful legitimacy so long as investment arbitration is characterized as performing constitution-like functions.
Keywords: investment arbitration, constitutional law, separation of powers, constituent power
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