Title: Substance and Methodology in Standards of Review
Abstract: Adjudicating of the disputes in an international arbitration includes a range of legal and factual observations and reviews. Tribunals initiate with deciding on their scope of review on jurisdictional basics and then on specific standards evaluate cause of action as the basis of the dispute. In investment arbitration, the first and foremost element of this cause of action that triggers the claimant to bring its claim in an international tribunal is a regulatory, executive or judicial action by a state, hosting property of a foreign investor, which claimed to be in 'breach of its international obligation'. In this line a particular 'standard of review' signifies the manner and process on which the arbitrator examines the state's actions to find if the relevant set of facts constituting state's measures is in breach of state's obligation with regards to protection of foreign investors. The aim of this article is to review, based on methodological considerations, the standards of review, applicable in international investment arbitration, of measures taken by host state in administration of it sovereign. I discuss the issue in two analytical parts; in first part the article comes through the three current approaches as regularly applied for evaluation of breach of international obligations, it means constitutional regulatory review, contractual framework analysis and the tort model methodology and consider why they are even useful in proceeding but inconsistent with the aims and scope of investment arbitration. The second part is devoted to suggest a standardized methodological framework to provide investment arbitrators with a wide range of standards to be applied in relevant disputes on a principle-based discretionary, rather than arbitrary, methodology to ensure rational, predictable and balanced decision.
Publication Year: 2012
Publication Date: 2012-01-01
Language: en
Type: article
Indexed In: ['crossref']
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