CETA's Investment Chapter: A Rule of Law Perspective

Description

This book provides a comprehensive account of the CETA Investment Chapter’s ability to overcome the legitimacy crisis facing investment arbitration. To do so, it first examines the root causes behind the legitimacy crisis, ultimately arguing that it reflects a fundamental rule of law crisis within investment arbitration. In particular, it asserts that the normative standpoints of the legitimacy crisis form part of the rule of law, the uniting legal principle from which the legitimacy concerns stem. The book contends that the rule of law is not only the principal normative and causal assumption on which the legitimacy concerns are based, but that it could also be utilized as a platform to evaluate the investment arbitration mechanism in CETA's Investment Chapter. Based on this, the book evaluates CETA's Investment Chapter through the rule of law framework in order to provide a convincing account of the latter's ability to overcome the legitimacy crisis facing investment arbitration. It concludes that CETA's Investment Chapter is unlikely to completely solve the legitimacy crisis simply because it is just a patchwork of reforms rather than a comprehensive reinvention of the substantive and procedural law of investment arbitration. Lastly, the book offers meaningful insights into the way the challenges presented by investment arbitration should be addressed. The book is intended for academics researching international investment law and arbitration as well as for policy-makers focusing on reforming investor-state dispute settlement. Preface List of Treaties, Conventions, Guidelines, and Resolutions Contents Abbreviations Table of Cases Chapter 1: Introduction References Chapter 2: The Backlash Against Investment Treaty Arbitration: Treat the Cause and Not the Symptom 2.1 Introduction 2.2 Brief Historical Account of Investment Treaty Arbitration 2.2.1 Colonial Era 2.2.2 Late Nineteenth and Early Twentieth-Century 2.2.3 Post-World War II Developments 2.2.4 Modern Regime of Investment Treaty Arbitration 2.3 Normative Foundations of Investment Treaty Arbitration 2.3.1 Preliminary Observations 2.3.2 Investment Arbitration as a Private Dispute Settlement Mechanism 2.4 The Backlash Against Investment Treaty Arbitration 2.4.1 Preliminary Observations 2.4.2 Multiple Proceedings and Conflicting Awards 2.4.3 Public Interest Concerns 2.4.4 Perceived Bias 2.4.5 Confidentiality and High Costs 2.5 Responses to the Backlash Against Investment Treaty Arbitration 2.5.1 The Way Forward 2.5.2 Investment Arbitration as a Public Law System 2.6 Conclusion References Chapter 3: Investment Treaty Arbitration and the Rule of Law: Tensions and Solutions 3.1 Introduction 3.2 Historical Origins of the Rule of Law 3.2.1 Classical Origins 3.2.2 Medieval Period 3.2.3 Modern Period 3.3 Scope and Content 3.3.1 Procedural Aspect of the Rule of Law 3.3.2 Substantive Aspect of the Rule of Law 3.4 The Rule of Law in the Context of Investment Treaty Arbitration 3.4.1 Preliminary Observations 3.4.2 Substantive Rule of Law 3.4.2.1 Human Rights Principles 3.4.3 Procedural Rule of Law 3.4.3.1 Transparency and Access to Justice 3.4.3.2 Procedural Fairness 3.4.3.3 Legal Certainty 3.5 Conclusion References Chapter 4: Legal Certainty and CETA: The Fallacy of a Single Treaty As a Solution 4.1 Introduction 4.2 Investment Protection Provisions 4.2.1 Fair and Equitable Treatment 4.2.2 Expropriation 4.2.3 Most-Favored-Nation Clause 4.3 Interpretation of Investment Protection Provisions 4.3.1 Vienna Convention on the Law of Treaties 4.3.2 Joint Interpretative Declarations 4.4 Multiple Proceedings and Conflicting Awards 4.4.1 Conflicting Awards 4.4.2 Multiple Proceedings 4.4.2.1 Consolidation Mechanism 4.4.2.2 Other Related Mechanisms 4.5 Conclusion References Chapter 5: Human Rights Protection in CETA: More Artificial Than Substantial 5.1 Introduction 5.2 Jurisdictional Stage 5.3 Applicable Law 5.3.1 General Observations 5.3.2 CETA 5.4 Amicus Curiae Briefs 5.5 Appellate Mechanism 5.6 Conclusion References Chapter 6: Procedural Fairness and CETA: Ghosts of Decades Past 6.1 Introduction 6.2 Code of Conduct and Enforcement Mechanism 6.2.1 IBA Guidelines and Ethics Provisions 6.2.2 Enforcement Mechanism 6.3 Investment Court System 6.3.1 Appointing Mechanism 6.3.2 Compensation Scheme 6.3.3 Qualification Requirements 6.4 Conclusion References Chapter 7: Transparency and Access to Justice in CETA: Issues and Shortcomings 7.1 Introduction 7.2 Transparency 7.2.1 Preliminary Observations 7.2.2 UNCITRAL Transparency Rules and Other Related Provisions 7.2.3 Amicus Curiae Briefs 7.3 Access to Justice 7.3.1 Costs and Fees 7.3.2 Third-Party Funding 7.4 Conclusion References Chapter 8: Conclusion