Selecting Investment Arbitrators: Reconciling Party Autonomy and the International Rule of Law

KFG Working Paper Series, No. 33, Berlin Potsdam Research Group “The International Rule of Law – Rise or Decline?”, 2019

27 Pages Posted: 4 Jun 2019

See all articles by James Devaney

James Devaney

University of Glasgow - School of Law

Date Written: May 2019

Abstract

This paper focuses on one particular issue which has arisen in the course of the ongoing debate on the reform of investor-State dispute settlement (ISDS), namely that of the appointment of arbitrators. Taking as its starting point that there now exists tentative consensus that the present system for the appointment of arbitrators either causes or exacerbates certain problematic aspects of the current ISDS system, the paper explores one option for reform, namely the introduction of an independent panel for the selection of investment arbitrators. In doing so, it is argued that a shift in the normative basis of the rules governing appointments is required in order to accommodate the principles of party autonomy and the international rule of law. Such reform, while not completely removing the initiative that parties presently enjoy, is the most efficient way to introduce rule of law considerations such as a measure of judicial independence into the current appointments system. This, it is argued, would in turn help to address some of the problematic features of the appointment of arbitrators in ISDS.

Suggested Citation

Devaney, James, Selecting Investment Arbitrators: Reconciling Party Autonomy and the International Rule of Law (May 2019). KFG Working Paper Series, No. 33, Berlin Potsdam Research Group “The International Rule of Law – Rise or Decline?”, 2019. Available at SSRN: https://ssrn.com/abstract=3388903 or http://dx.doi.org/10.2139/ssrn.3388903

James Devaney (Contact Author)

University of Glasgow - School of Law ( email )

Stair Building
5 - 8 The Square
Glasgow, Scotland G12 8QQ
United Kingdom

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