Kilic, Neriman (2019) Legitimacy concerns in investor-state dispute settlement. PhD thesis, University of Warwick.

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Abstract

The system of Investor-State Dispute Settlement (ISDS) is not based on a formally recognized hierarchical structure amongst tribunals. In fact, tribunals are created on a case by case basis and therefore, exist only to settle the dispute before them. Moreover, there is no unified statement of International Investment Law (IIL) norms, rather investment norms are currently found in investment agreements which are more than 3000 in number.

The fragmented nature of the system of ISDS and IIL give rise to certain concerns of illegitimacy. For instance, the absence of a formally recognized hierarchical structure amongst tribunals has led to inconsistent decisions even when the facts and the applicable rules were similar. Moreover, even though investment disputes involve issues that have an impact beyond the parties, institutional rules and investment agreements do not provide uniform rules on transparency. Lastly, broad interpretations of investment standards by tribunals have led to an imbalance between the interests of investment protection and the right of states to adopt legitimate policy measures. In light of these concerns, states and non-party stakeholders have begun to question the legitimacy of the current system of ISDS.

Solutions that can be adopted to remedy these concerns, without requiring a fundamental reform of the system of ISDS are not be capable of adequately resolving all three concerns that have given rise to a crisis of legitimacy. It is proposed that the most viable solution is to reach consensus on replacing all investment treaties with an Multilateral Investment Agreement (MAI), and to establish a standing two-tiered international court system to interpret it. The adoption of this proposal, it is argued, would go a long way in resolving the legitimacy crisis that the system is currently suffering from.

Item Type:	Thesis (PhD)
Subjects:	K Law [Moys] > KC International Law
Library of Congress Subject Headings (LCSH):	Dispute resolution (Law), Arbitration and award, Investments, Foreign (International law), Transparency in government
Official Date:	31 January 2019
Dates:	Date Event 31 January 2019 UNSPECIFIED
Institution:	University of Warwick
Theses Department:	School of Law
Thesis Type:	PhD
Publication Status:	Unpublished
Supervisor(s)/Advisor:	Wagner, Markus
Format of File:	pdf
Extent:	258 leaves : illustration
Language:	eng

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