Chapter

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

Gus Van Harten

in International Investment Law and Comparative Public Law

Published in print October 2010 | ISBN: 9780199589104
Published online January 2011 | e-ISBN: 9780191595455 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199589104.003.0020
Investment Treaty Arbitration, Procedural Fairness, and the Rule of Law

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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

Chapter.  16469 words. 

Subjects: Constitutional and Administrative Law

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