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Assessing the Normative Legitimacy of Investment Arbitration : The EU’s Investment Court System

Lisa Diependaele UGent, Ferdi De Ville UGent and Sigrid Sterckx UGent (2018) NEW POLITICAL ECONOMY .
abstract
The inclusion of an investment chapter in the Comprehensive Economic and Trade Agreement (CETA) and the Transatlantic Trade and Investment Partnership (TTIP) has encountered significant opposition, especially in relation to Investor-State Dispute Settlement (ISDS). In this context, the EU has proposed several changes to the traditional procedures, including the creation of an investment court. The need to reform ISDS has long been recognised, but the key question remains: What is required for such a dispute settlement mechanism to have legitimate authority? Drawing from insights in legal theory and political philosophy, we examine what could be adequate criteria for the normative legitimacy of ISDS. We argue that ISDS can only be minimally legitimate if there are sufficient procedural safeguards to ensure fair access to the proceedings and equal consideration of their interest for all those affected by investment tribunals’ or courts’ decisions. Furthermore, we emphasize the need to look beyond what potential beneficial and adverse consequences of ISDS are, and explain that the appointment of the judges by the state parties and the reintroduction of some control of the state parties over dispute settlement outcomes are not sufficient to guarantee the normative legitimacy of ISDS.
Please use this url to cite or link to this publication:
author
organization
year
type
journalArticle (original)
publication status
in press
subject
keyword
CETA, TTIP, investment arbitration, ISDS, investment court system, normative legitimacy, democratic legitimacy
journal title
NEW POLITICAL ECONOMY
publisher
Informa UK Limited
ISSN
1356-3467
1469-9923
DOI
10.1080/13563467.2017.1417362
language
English
UGent publication?
yes
classification
A1
copyright statement
I have transferred the copyright for this publication to the publisher
id
8543006
handle
http://hdl.handle.net/1854/LU-8543006
alternative location
http://www.tandfonline.com/doi/full/10.1080/13563467.2017.1417362
date created
2017-12-22 08:26:40
date last changed
2018-01-09 07:44:02
@article{8543006,
  abstract     = {The inclusion of an investment chapter in the Comprehensive Economic and Trade Agreement (CETA) and the Transatlantic Trade and Investment Partnership (TTIP) has encountered significant opposition, especially in relation to Investor-State Dispute Settlement (ISDS). In this context, the EU has proposed several changes to the traditional procedures, including the creation of an investment court. The need to reform ISDS has long been recognised, but the key question remains: What is required for such a dispute settlement mechanism to have legitimate authority? Drawing from insights in legal theory and political philosophy, we examine what could be adequate criteria for the normative legitimacy of ISDS. We argue that ISDS can only be minimally legitimate if there are sufficient procedural safeguards to ensure fair access to the proceedings and equal consideration of their interest for all those affected by investment tribunals{\textquoteright} or courts{\textquoteright} decisions. Furthermore, we emphasize the need to look beyond what potential beneficial and adverse consequences of ISDS are, and explain that the appointment of the judges by the state parties and the reintroduction of some control of the state parties over dispute settlement outcomes are not sufficient to guarantee the normative legitimacy of ISDS.},
  author       = {Diependaele, Lisa and De Ville, Ferdi and Sterckx, Sigrid},
  issn         = {1356-3467},
  journal      = {NEW POLITICAL ECONOMY                 },
  keyword      = {CETA,TTIP,investment arbitration,ISDS,investment court system,normative legitimacy,democratic legitimacy},
  language     = {eng},
  publisher    = {Informa UK Limited},
  title        = {Assessing the Normative Legitimacy of Investment Arbitration : The EU{\textquoteright}s Investment Court System},
  url          = {http://dx.doi.org/10.1080/13563467.2017.1417362},
  year         = {2018},
}

Chicago
Diependaele, Lisa, Ferdi De Ville, and Sigrid Sterckx. 2018. “Assessing the Normative Legitimacy of Investment Arbitration : The EU’s Investment Court System.” New Political Economy  .
APA
Diependaele, L., De Ville, F., & Sterckx, S. (2018). Assessing the Normative Legitimacy of Investment Arbitration : The EU’s Investment Court System. NEW POLITICAL ECONOMY  .
Vancouver
1.
Diependaele L, De Ville F, Sterckx S. Assessing the Normative Legitimacy of Investment Arbitration : The EU’s Investment Court System. NEW POLITICAL ECONOMY  . Informa UK Limited; 2018;
MLA
Diependaele, Lisa, Ferdi De Ville, and Sigrid Sterckx. “Assessing the Normative Legitimacy of Investment Arbitration : The EU’s Investment Court System.” NEW POLITICAL ECONOMY  (2018): n. pag. Print.