Defining New Institutional Options for Investor-state Dispute Settlement

By Fiona Marshall on October 4, 2009
This paper examined institutional options to enhance the legitimacy of the investment treaty arbitration process. It posited that three elements needed to ensure legitimacy in the investor-state arbitration context are currently lacking:
  • Independence, accountability and expertise of decision-makers
  • Transparency of the investor-state arbitration process
  • Coherence in the law, in particular the prevention of inconsistent decisions
Drawing on approximately forty articles, speeches and books by prominent arbitrators and legal scholars, the project examined the most-used arbitration rules, recent developments in investment treaties and practices in other international dispute settlement processes as a basis for identifying those points where change might be most simply and effectively effected to enhance legitimacy. Other international dispute settlement processes considered in the project included those of the World Trade Organization, the International Court of Justice, the European Court of Justice and the International Criminal Tribunal for Yugoslavia.

Report details

IISD, 2009