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International Investment Law and Comparative Public Law$
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Stephan W. Schill

Print publication date: 2010

Print ISBN-13: 9780199589104

Published to Oxford Scholarship Online: January 2011

DOI: 10.1093/acprof:oso/9780199589104.001.0001

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Investment Treaty Arbitration, Procedural Fairness, and the Rule of Law

Investment Treaty Arbitration, Procedural Fairness, and the Rule of Law

Chapter:
(p.627) 20 Investment Treaty Arbitration, Procedural Fairness, and the Rule of Law
Source:
International Investment Law and Comparative Public Law
Author(s):

Gus Van Harten

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199589104.003.0020

Investment treaty arbitration is often promoted as a fair, rules-based system and thus as something that advances the rule of law. But there is a tendency to downplay the system's inattention to well-known safeguards of judicial independence and, in turn, to the procedural core of the rule of law concept. This chapter argues that investment treaty arbitration falls short in institutional terms due to its unique combination of arbitration and public law, its asymmetrical claims structure, its reliance on executive officials to make case-by-case appointments, and its attenuation of judicial oversight. These characteristics create an apprehension of bias in favour of claimants (investors) and in favour of those states that wield power over appointing authorities or the system as a whole. This, in turn, undermines claims that the system advances the rule of law.

Keywords:   independence, impartiality, bias, procedural fairness, rule of law, investment, arbitration

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