IDEAS home Printed from https://ideas.repec.org/a/taf/cnpexx/v24y2019i1p37-61.html
   My bibliography  Save this article

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

Author

Listed:
  • 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
    as

    Download full text from publisher

    File URL: http://hdl.handle.net/10.1080/13563467.2017.1417362
    Download Restriction: Access to full text is restricted to subscribers.
    File URL: https://libkey.io/10.1080/13563467.2017.1417362?utm_source=ideas
    LibKey link: if access is restricted and if your library uses this service, LibKey will redirect you to where you can use your library subscription to access this item
    ---><---

    As the access to this document is restricted, you may want to search for a different version of it.

    Citations

    Citations are extracted by the CitEc Project, subscribe to its RSS feed for this item.
    as


    Cited by:

    1. 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.
    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.

    More about this item

    Statistics

    Access and download statistics

    Corrections

    All material on this site has been provided by the respective publishers and authors. You can help correct errors and omissions. When requesting a correction, please mention this item's handle: RePEc:taf:cnpexx:v:24:y:2019:i:1:p:37-61. See general information about how to correct material in RePEc.

    If you have authored this item and are not yet registered with RePEc, we encourage you to do it here. This allows to link your profile to this item. It also allows you to accept potential citations to this item that we are uncertain about.

    We have no bibliographic references for this item. You can help adding them by using this form .

    If you know of missing items citing this one, you can help us creating those links by adding the relevant references in the same way as above, for each refering item. If you are a registered author of this item, you may also want to check the "citations" tab in your RePEc Author Service profile, as there may be some citations waiting for confirmation.

    For technical questions regarding this item, or to correct its authors, title, abstract, bibliographic or download information, contact: Chris Longhurst (email available below). General contact details of provider: http://www.tandfonline.com/cnpe20 .

    Please note that corrections may take a couple of weeks to filter through the various RePEc services.

    IDEAS is a RePEc service. RePEc uses bibliographic data supplied by the respective publishers.