Investor-State Arbitration as Governance: Fair and Equitable Treatment, Proportionality and the Emerging Global Administrative Law

Investment Treaty Law and the Fear for Sovereignty: Transnational Challenges and Solutions

“…And indeed, some arbitrators have at least in principle accepted this logic when, for example, recognising the need to cap the reach of the FET standard under NAFTA to the ‘ordinary standards applied in the NAFTA countries’. The resulting implications coincide largely with Schill's plea for the application of ‘principles of the emerging global administrative law’, but go beyond that by showing that the introduction of comparative public law is not only a useful but actually a necessary means for construing and constraining investment treaty law.…”

Reviving the emperor’s old clothes: The good governance agenda, development and international investment law

“…Specifically, interpretations of the former standard, regarded as the 'alpha and the omega' of the so-called 'BIT generation', 38 constitutes 'good administrative governance' in host states. 39 These include requirements of 'stability predictability and consistency' of the host state's legal framework; 40 'protection of legitimate expectations'; 41 'administrative due process and prohibition of denial of justice' 42 and the 'requirement of transparency'. 43 The use of the language of good governance to justify this expansive reach of international investment law into the domestic sovereign realm has been justified and indeed promoted by its proponents who argue that such 'normative seepage' 44 can influence the positive development of legal, regulatory and administrative institutions in host states.…”

“…For example, it has been argued that requirements for transparency in and accountability for regulatory change and administrative decision-making may in turn combat political corruption and temper arbitrary or discretionary exercises of state power. 45 Meanwhile, it is argued that regulatory competition between domestic courts and international arbitral mechanisms can incentivise local courts to 'compete for the business of resolving commercial disputes and therefore improve their quality'. 46 In other words, it has been contended that institutional reforms induced by IIAs to protect foreign investors can 'trickle down' to host state constituents generally, including domestic investors as well as other stakeholders.…”

When Investment Arbitration Curbs Domestic Regulatory Space: Consistent Solutions through Amicus Curiae Submissions by Regional Organisations

“…37 Benedict Kingsbury and Stephan Schill have sought to situate the "far-reaching governance functions" of arbitral tribunals in a "global administrative space", where tribunals have become "review agencies" of host-states' powers. 38 This role provides a "normative justification" for the existence of investment arbitration, substituting the "tenuous" justification that BITs are intended to promote investment flows. 39 However, most of the elements that might be expected to comprise such a functioning public law system -the presumed absence of which in host-states is central to the regime's rationaleare paradoxically absent from investment arbitration itself.…”

“…Kingsbury and Schill's suggestion that it is "likely" that such standards "will be applied over time, mutatis mutandis, to the activities of arbitral tribunals themselves", provides little reassurance. 42 In practice, ICSID tribunals have "generated contradictory jurisprudence that both lacks theoretical coherence and remains tied to the private law origins of international arbitration." 43 Proponents of investment arbitration further claim that the mechanism is central to depoliticizing and stabilizing economic exchange in the investment context.…”