Thursday, December 13, 2012

If arbitration acts like law, it should act like law

A paper recently posted on SSRN says investment treaty arbitration tribunals are facing pressure to conform to legal review standards since they are recognized as performing law-like functions. Required reading for anyone who wants to think about arbitration in tax treaties.

Anthea Roberts, The Next Battleground: Standards of Review in Investment Treaty Arbitration. Abstract:
We are witnessing growing calls by States, academics and NGOs for investment arbitral tribunals to recognize that they are engaged in a form of international judicial review and thus should adopt appropriate levels of deference when reviewing the legislative, executive and judicial acts of respondent States. Some draw on domestic public law comparisons, arguing that tribunals should adopt deferential standards of review when adjudicating upon governmental conduct. Others rely on international comparisons, invoking notions such as the margin of appreciation doctrine that some international courts adopt when reviewing State actions for conformity with international obligations. Whether and when investment treaty tribunals should adopt deferential standards of review represents the next battleground for those who conceptualize investment treaty arbitration as a form of global governance.

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