Beware the discretionary choices of arbitrators

Van Harten, Gus

Investment treaty arbitration has unfolded rapidly in recent years. Some observations arising from analyses of arbitrator awards are highlighted below.[1] They support broad conclusions that:
· arbitrators reviewed a wide range of legislative, executive and judicial decisions but typically did not exercise judicial restraint in various ways associated with domestic and international courts;
· arbitrators typically adopted expansive approaches to their authority and to investor entitlements to compensation, especially where the claimant had the nationality of a major Western capital-exporting state; and
· decision-making power was highly concentrated among arbitrators, suggesting a need for closer scrutiny of how the most active individual arbitrators have expanded the meaning of investment treaties and corresponding principles of state liability.


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More About This Work

Academic Units
Vale Columbia Center on Sustainable International Investment
Vale Columbia Center on Sustainable International Investment
Columbia FDI Perspectives, 110
Published Here
December 13, 2013

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