Parsing and Managing Inconsistency in Investor-State Dispute Settlement

30 Pages Posted: 29 Jan 2020 Last revised: 12 Dec 2020

See all articles by Julian Arato

Julian Arato

Brooklyn Law School

Chester W. Brown

The University of Sydney Law School

Federico Ortino

King's College London - The Dickson Poon School of Law

Date Written: January 20, 2020

Abstract

Inconsistency in legal interpretation is among the most salient problems in investor-state dispute settlement (ISDS) and it is one of the key issues being addressed by the reform efforts in the United Nations Commission on International Trade Law (UNCITRAL) Working Group III. While some degree of interpretive inconsistency is endemic to any legal order, systemic inconsistency tends to undermine the basic purposes of the investment treaty regime – namely protecting and promoting foreign direct investment through predictable international legal rules and institutions. This article seeks to parse the problem of inconsistency at a more granular level, in order to distinguish between types of norms where a degree of inconsistency is (relatively) manageable and (potentially) tolerable, and those where inconsistency is unacceptable. We argue that it is with regard to structural “rules of the game” where inconsistency is most destructive.

Keywords: Consistency, Coherence, International Investment Law, Investor-State Dispute Settlement (ISDS), Multilateral Investment Court, Investment Arbitration Reform

Suggested Citation

Arato, Julian and Brown, Chester W. and Ortino, Federico, Parsing and Managing Inconsistency in Investor-State Dispute Settlement (January 20, 2020). 21 Journal of World Investment and Trade (2020), Brooklyn Law School, Legal Studies Paper, 631, King's College London Law School Research Paper 2020-43, Available at SSRN: https://ssrn.com/abstract=3522483

Julian Arato (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States

Chester W. Brown

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

Federico Ortino

King's College London - The Dickson Poon School of Law ( email )

Somerset House East Wing
Strand
London, WC2R 2LS
United Kingdom
+44(0)2078481747 (Phone)

HOME PAGE: http://www.kcl.ac.uk/law/people/academic/fortino.aspx

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