Skip to main content
Disciplines
Automotive Business IT + Informatics Construction + Real Estate Electrical Engineering + Electronics Energy + Sustainability Insurance + Risk Finance + Banking Management + Leadership Marketing + Sales Mechanical Engineering + Materials
Events
DE
EN
Books
Journals
Topic Page
Marketing
Start single access now
Access for companies
EXTENDED SEARCH
Log in
Top

2023 | Book

Charting the Route Read chapter Read first chapter

Rethinking Investor-State Arbitration

Author: Flavia Marisi

Publisher: Springer International Publishing

Book Series : Studies in European Economic Law and Regulation

Part of: Springer Professional "Wirtschaft+Technik" , Springer Professional "Wirtschaft"

Login to get access
insite
SEARCH

About this book

A significant increase in investor-State arbitration cases has been observed since the 2000s. The trust placed by investors and States in this method of dispute resolution stems from several strengths. In addition to its neutrality, one of the primary reasons for its widespread use is its adaptability, enabling it to address specific challenges that have emerged in recent decades. The following elements highlight this adaptability: the arbitration procedure can be customised to meet the specific needs of the disputing parties and stakeholders involved. It effectively responds to evolving cultural norms and ethical considerations, such as diversity, gender representation, corporate social responsibility, environmental issues, and human rights. Moreover, it can adapt to global health crises by facilitating online hearings. Finally, during times of international armed conflict, economic exchanges, trade, investment, and investor-State dispute settlement foster economic integration and interdependence, contributing to maintaining commercial peace and supporting international peace and security.
However, investor-State arbitration has sparked vigorous debates, with many advocating for reform in three crucial aspects: transparency, legitimacy, and consistency. Multilateral negotiations are currently underway on various fronts, including the negotiation of more sustainable investment treaties, amendments to institutional arbitral rules, the design of a multilateral investment court, and the development of enhanced policy frameworks.
This book delves into the history of investor-State dispute resolution to provide readers with an understanding of how its main features have evolved over time. It examines the most intensely debated procedural issues, analyses their multifaceted characteristics, reviews the complex relationship between investor-State arbitration and the European Union, and explores potential options for addressing stakeholder concerns.

Table of Contents

Frontmatter
Chapter 1. Charting the Route
Abstract
Why has investor-State arbitration attracted numerous critiques? How was the current system of investor-State arbitration historically developed? How does investor-State arbitration interact with EU law? Who are the main actors discussing a reform? What are the reform options proposed? Chapter One prepares the reader for the investigative journey of this Book. It contains the conceptual and theoretical background and highlights the main features of the research, such as its objectives, motivation, and rapport with the existing literature. Besides, it offers an overview on the structure of the Book.
Flavia Marisi
Chapter 2. History of Investor-State Dispute Settlement
Abstract
This Chapter examines the origins of international investment law and the resolution of its disputes, highlighting how some features of the currently used method of dispute resolution have ancient origins, and have been preserved during centuries notwithstanding the changing cultural, political, and economical framework in the countries involved, and the subsequent evolution of their mutual relationships.
Flavia Marisi
Chapter 3. Adaptability of Investor-State Arbitration
Abstract
This Chapter focuses on the main reason for the widespread success of investment arbitration beyond neutrality: its adaptability. It discusses the active role of the disputing parties in determining the procedure, and the capacity of investment arbitration to adapt to technological progress, and tackle the social distancing measures taken against the Covid-19 pandemic. Moreover, this Chapter reflects on the flexibility of investment arbitration to respond to cultural changes and practically implement ethical considerations by increasing diversity in the appointment of arbitrators in terms of geographical origin, gender representation, and background in civil law or common law. It investigates the evolution of the case-law that increasingly demonstrates openness to human rights and corporate social responsibility. Finally, it emphasises the general role of international trade and investment in building and maintaining international ‘commercial peace’, and examines the adaptability of investor-State arbitration in response to geopolitical challenges such as the Russian invasion of Ukraine.
Flavia Marisi
Chapter 4. Criticisms of Investor-State Arbitration
Abstract
This Chapter examines the fundamental issue whether investor-State dispute settlement (‘ISDS’) is a balanced system. It reports the caseload statistics of investment arbitration cases. It identifies transparency, legitimacy, and consistency as the most highly debated procedural aspects of investment arbitration, where numerous commentators found that improvements can be made. It finally flags a critique raised by the Court of Justice of the European Union concerning the relationship between investment arbitration and EU law.
Flavia Marisi
Chapter 5. Transparency in Investor-State Arbitration
Abstract
This Chapter shows that there are historical reasons that led States to design an investment arbitration system characterised by confidentiality, similarly to commercial arbitration. It illustrates that there are various stages of investment arbitration where a certain degree of transparency could be attained while at the same time protecting sensitive or confidential information, including the registration of the notice of arbitration, the accessibility of procedural orders and the publication of the final award, the participation of non-disputing parties, amicus curiae submissions, and the openness of hearings to the public. The research highlights that the first-generation IIAs did not include such details, being succinctly drafted, and often even the most recently signed IIAs do not contain specific provisions, although they use a more precise wording. However, the reference to the UNCITRAL Rules on Transparency is a promising development in this field.
Flavia Marisi
Chapter 6. Legitimacy in Investor-State Arbitration
Abstract
This Chapter examines the criticisms of the legitimacy of investor-State arbitration moved by some experts, exacerbated by the inherent fragmentation of international investment law. These comments are based on the function of arbitral tribunals in assessing whether public measures have breached investment protection obligations, the standards of review applied by arbitral tribunals when a measure was issued with a public interest purpose, arbitrators and ethics, the methods of appointment of arbitrators, conflict of interest, disclosure obligations, codes of conduct, and the possibility that States have to file counterclaims against investors.
Flavia Marisi
Chapter 7. Consistency in Investor-State Arbitration
Abstract
This Chapter looks at the question of the consistency of the investor-State arbitration system, which has raised concern among some researchers: highly debated issues include the principles of legal certainty and judicial economy, the issues of treaty shopping and forum shopping, the problem of parallel proceedings, the value of precedent in a decentralised and fragmented system, the possibility to correct errors through annulment and appeal, and challenges to recognition and enforcement. This Chapter presents the discussions for the establishment of a two-tier mechanism: the proposed Standing Multilateral Mechanism for Investor-State Disputes, the Multilateral Investment Court project, the Investment Court System, the 2004 ICSID appeals proposal, and the wording used in some Model BITs and IIAs.
Flavia Marisi
Chapter 8. Investor-State Arbitration and European Union Law
Abstract
This Chapter examines the relationship between investor-State arbitration and EU law. It discusses how the EU and its Member States strove for the correct and uniform application of EU law in an international investment law context. In Slovak Republic v Achmea, the Court of Justice of the EU clarified that intra-EU ISDS is incompatible with EU law. This approach originates from the Opinions of the Court of Justice of the EU preventing external judiciary organs to have jurisdiction on legal acts and omissions of the EU, and is reinforced by the Member States’ Declarations of 15 and 16 January 2019, as well as the Termination Agreement of 5 May 2020 phasing out intra-EU ISDS. This Chapter further discusses landmark cases such as République de Moldavie v Komstroy; Republic of Poland v PL Holdings; and European Commission v European Food SA and Others. Finally, the inclusion of the Investment Court System in bilateral agreements with trade partners of the EU, the proposal of a Multilateral Investment Court and the work on a Standing Multilateral Mechanism for the resolution of investor-State disputes within the UNCITRAL Working Group III are endeavours to improve various pitfalls of the ISDS system.
Flavia Marisi
Chapter 9. Conclusions
Abstract
Chapter Nine comes full circle, tracing an overview of the research path conducted, and connecting it organically with a look towards the future. It discusses the current proposals for reforming investor-State arbitration, arbitration rules, and investment treaty-making, and suggests options that provide solutions to the identified issues of transparency, consistency, and legitimacy vis-à-vis all stakeholders, therefore refining the balance between private and public interests.
Flavia Marisi
Backmatter
Metadata
Title
Rethinking Investor-State Arbitration
Author
Flavia Marisi
Copyright Year
2023
Electronic ISBN
978-3-031-38184-3
Print ISBN
978-3-031-38183-6
DOI
https://doi.org/10.1007/978-3-031-38184-3

Premium Partner

    Image Credits