Can Investment Dispute Settlement Ever Be Depoliticized?

Authors

• Fernando Dias Simões, Faculty of Law of the Chinese University of Hong Kong

Abstract

Investor-state arbitration was created with the hope of depoliticizing investment disputes. However, the adoption of the traditional party-appointment system, in which disputing parties play a direct role in the composition of the tribunal, is increasingly criticized. Many believe that party appointment is a tool ofpolitical influence over the arbitrators' interpretative space. Suggestions for reform of the system have proliferated. The most radical proposal currently on the table-the creation of a permanent investment court-would cause a paradigm shift in the selection of adjudicators, moving from a disputing party framework, to a treaty party context. This article analyzes different options to reduce political influence in the selection process and discusses their potential effectiveness. It concludes that proposed alternatives to the party-appointed regime can only help to mitigate, but never completely dispel, the risk ofpolitical contamination ofthe process through which investment adjudicators are selected.

Disciplines

Comparative and Foreign Law | Dispute Resolution and Arbitration | International Law | International Trade Law | Law | Law and Politics

Recommended Citation

Fernando D. Simões, Can Investment Dispute Settlement Ever Be Depoliticized?, 4 Cardozo Int’l & Compar. L. Rev. 507 (2021).
Available at: https://larc.cardozo.yu.edu/ciclr/vol4/iss2/4