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

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  • Lisa Diependaele
  • Ferdi De Ville
  • Sigrid Sterckx

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.

Suggested Citation

  • Lisa Diependaele & Ferdi De Ville & Sigrid Sterckx, 2019. "Assessing the Normative Legitimacy of Investment Arbitration: The EU’s Investment Court System," New Political Economy, Taylor & Francis Journals, vol. 24(1), pages 37-61, January.
    • Handle: RePEc:taf:cnpexx:v:24:y:2019:i:1:p:37-61
    DOI: 10.1080/13563467.2017.1417362
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    Cited by:

    1. Bart-Jaap Verbeek, 2022. "Embedded Neoliberalism and the Legitimacy of the Post-Lisbon European Union Investment Policy," Politics and Governance, Cogitatio Press, vol. 10(3), pages 110-120.
    2. Leslie Johns & Calvin Thrall & Rachel L. Wellhausen, 2020. "Judicial economy and moving bars in international investment arbitration," The Review of International Organizations, Springer, vol. 15(4), pages 923-945, October.
    3. Anna Herranz-Surrallés, 2020. "‘Authority Shifts’ in Global Governance: Intersecting Politicizations and the Reform of Investor–State Arbitration," Politics and Governance, Cogitatio Press, vol. 8(1), pages 336-347.

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