The tension between domestic environmental protection and foreign investor rights has been one of the primary drivers of the ‘legitimacy crisis’ in investmenttreatyarbitration (ITA). For almost two decades, scholars and civil society actors have raised concerns that domestic policy space for
huge controversy about the admissibility of mass claims in investmenttreatyarbitration. In this regard, the literatures on this issue arrive at conflicting conclusion. This article thus aims to provide a more balanced approach to mass claims in investmenttreatyarbitration on sovereign debt disputes
Civil Society in Investment Treaty Arbitration: Status and Prospects provides an overview of the evolution of civil society’s participation as amicus curiae before ICSID tribunals and ad hoc tribunals applying the UNCITRAL Arbitration Rules. That evolution fits within a broader movement towards transparency in investment treaty arbitration. By looking at the procedural roles available to civil society before other jurisdictions, the book questions whether the amicus role could be expanded. El-Hosseny ultimately shows how substance and procedure closely intertwine. The issue of civil society’s participation in investment treaty arbitration transcends the procedural realm. It is equally about arbitral tribunals’ openness vis-à-vis public interest, environmental protection and human rights issues—a crucial consideration in ongoing debates over the legitimacy, and future, of investor-state arbitration.
Although international investment agreements are meant to enable investors of all sizes to protect their investments, the reality is that investmenttreatyarbitration (ITA) is designed for large claims. According to the United Nations Conference on Trade and Development
investmenttreatyarbitration since then, the two awards present a fascinating picture of the system in its infancy. In particular, in drawing on domestic administrative law to interpret the Germany-Poland treaty’s provisions on indirect expropriation, the Tribunal hints at the ‘comparative public law
investors in their territories, investmenttreatyarbitration may considerably affect the regulatory capacity of a state, preventing it from enforcing policies demanded by the public interest.
The ratification of the first Bilateral Investment Treaty ( bit ) between West Germany and Pakistan, in 1959, was
investment treaty claims are heard. Moreover, whilst international law recognizes the doctrine of abuse of process, it is rarely applied.3 It is timely, therefore, to consider the doctrine of abuse of process as it applies in investmenttreatyarbitration. This article (a) outlines the meaning of 'abuse of
convergence as regards the conditions under which breaches of domestic law affect the protection of foreign investors under international law. This unveils the contours of a doctrinal framework for dealing with illegal investments in investmenttreatyarbitration (Section IV).
II. Arbitral Jurisprudence
The ultimate goal of the claimant in an investmenttreatyarbitration is almost always the payment of compensation for the harm it believes it has suffered at a host State’s hands. The respondent, meanwhile, is always intent on, if not defeating the claim altogether, reducing the financial and
Protection and promotion of foreign investment, one essential element of international economic relations and a cornerstone of the macroeconomic policy of developing States, like Latin-American States, is deemed to be undergoing a ‘legitimacy crisis’ that manifests itself in a generalized discontent by the system’s major stakeholders and some sectors of public society. One of the sources of such crisis can be found in the lack of a proper understanding of the nature of the system itself. After identifying the reasons why the problematiques of International Investment Law and Investment Treaty Arbitration are better understood as matters of public law, this work adopts a comparative public law approach to study the different ways in which Latin-American constitutional courts intervene in International Investment Law and Investment Treaty Arbitration, and outlines the major features of a proposed dialectic relation between constitutional courts and arbitral tribunals, in which constitutional courts can benefit from the study of the findings of arbitral tribunals regarding the nature and scope of substantive standards of protection, among others, in the process of reviewing the constitutionality of International Investment Agreements, and arbitral tribunals can use national constitutional doctrine as one among other public law sources in which to inform their task. The adoption of such an approach will assist in the reduction of the legitimacy gap of International Investment Law and Investment Treaty Arbitration, thus helping to overcome the crisis of the system.