Journal Article

Looking for Legitimacy: Exploring Proportionality Analysis in Investment Treaty Arbitration

Erlend M. Leonhardsen

in Journal of International Dispute Settlement

Volume 3, issue 1, pages 95-136
Published in print March 2012 | ISSN: 2040-3585
Published online September 2011 | e-ISSN: 2040-3593 | DOI: https://dx.doi.org/10.1093/jnlids/idr014
Looking for Legitimacy: Exploring Proportionality Analysis in Investment Treaty Arbitration

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  • Arbitration
  • Private International Law and Conflict of Laws
  • Public International Law
  • Settlement of Disputes

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The application of the principle of proportionality has become commonplace in international adjudication. However, scholars have to little extent examined its usage in investment treaty arbitration. Here, these cases are examined and it is argued that the increased use of proportionality analysis should be seen in light of the so-called legitimacy crisis of the investment arbitration regime. This thesis is substantiated by noting that firstly, the proportionality principle has been applied precisely in the type of cases that has caused most controversy, and, secondly, because there does not seem to be a strong legal basis for the application in the cases where it has been applied.

Journal Article.  24218 words. 

Subjects: Arbitration ; Private International Law and Conflict of Laws ; Public International Law ; Settlement of Disputes

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