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The legitimacy crisis of investor-state arbitration and the new EU investment court system

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  • Thomas Dietz
  • Marius Dotzauer
  • Edward S. Cohen

Abstract

In response to the ongoing legitimacy crisis of investor-state arbitration, the European Union (EU) developed a new model of investor-state dispute settlement (ISDS) that replaces international arbitration with a system of bilateral investment courts. In this article, we draw on literature on the role of legitimacy in driving institutional change in international institutions to explain the rise of the new EU model. We further examine the extent to which the new EU model is able to overcome this crisis, thereby potentially giving the ISDS a new legitimation. We argue that the new EU model in large part does provide a substantial response to several frequently contested legitimacy gaps of ISDS. At the same time, however, we suggest that the EU model does not effectively address the most fundamental criticism of ISDS, which questions the very existence of a specific judicial forum providing exclusive rights for international investors, particularly between states with highly developed economies and legal orders.

Suggested Citation

  • Thomas Dietz & Marius Dotzauer & Edward S. Cohen, 2019. "The legitimacy crisis of investor-state arbitration and the new EU investment court system," Review of International Political Economy, Taylor & Francis Journals, vol. 26(4), pages 749-772, July.
    • Handle: RePEc:taf:rripxx:v:26:y:2019:i:4:p:749-772
    DOI: 10.1080/09692290.2019.1620308
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    Cited by:

    1. Johann Robert Basedow, 2022. "Why de‐judicialize? Explaining state preferences on judicialization in World Trade Organization Dispute Settlement Body and Investor‐to‐State Dispute Settlement reforms," Regulation & Governance, John Wiley & Sons, vol. 16(4), pages 1362-1381, October.
    2. 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.
    3. 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.
    4. Curran, Louise, 2024. "Investor state dispute settlement (ISDS) and the social licence to operate of international business: An analysis of controversial cases," International Business Review, Elsevier, vol. 33(2).
    5. Katharine Heyl & Felix Ekardt & Paula Roos & Jessica Stubenrauch & Beatrice Garske, 2021. "Free Trade, Environment, Agriculture, and Plurilateral Treaties: The Ambivalent Example of Mercosur, CETA, and the EU–Vietnam Free Trade Agreement," Sustainability, MDPI, vol. 13(6), pages 1-24, March.

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