Standards of Review in International Investment Law and Arbitration: Multilevel Governance and the Commonweal

Investment treaty tribunals have increasingly touched upon delicate issues, including for example access to water, public health or cultural polices. What standard of review have they adopted vis-à-vis state regulation aimed to protect fundamental interests and values? Can ideas regarding the standards of review be borrowed from other national and international systems; and if so, which one should be selected? Or, rather, due to its hybrid nature investment law scholars should develop specific standards of review only for investment law and arbitration? Far from being merely theoretical, these questions touch upon the legitimacy of international investment law and arbitration as a component of multilevel governance which now characterizes international (economic) relations. Investigating these questions can contribute to the alignment of general international law and investment protection, reinforcing the capacity of international investment law to contribute to the public wealth. The article submits that while a standard of complete deference to national measures would run against the very purpose of international investment law; an overly intrusive standard is neither a feasible option. In this context the authors consider standards developed within the WTO as a possible model for international arbitration tribunals. The Authors 2013. Published by Oxford University Press. All rights reserved., Oxford University Press.