International investment has significantly increased in the recent decades. Because of the specific nature of host states and investors, power is of one of the most critical dynamics of this field. Despite its importance, power has been a neglected area of research in investment. Power is a complex, but highly essential concept, which can be conceptualised from different dimensions. In investor-state arbitration relationship, the three principal players have different forms of power: legal, economic, and political. This thesis argues that arbitrators have a crucial role in enhancing legitimacy and effectiveness of investment arbitration system. They can function this task through their legal powers. Firstly by complying with the main principles of the rule of law, including equality before the law, impartiality and independence, and procedural justice, arbitrators can secure the legitimacy of investment arbitration system. Secondly by balancing power inequalities and conflict of interests of the parties, on the basis of the principles of inequality of bargaining power and proportionality, arbitrators can contribute in increasing the effectiveness of the system. Thus the legitimacy and effectiveness of the investment arbitration system is contingent to power dynamic. The effect of legitimacy is to maintain sustainability, and the impact of effectiveness is to secure the development of the system. Thus power in investment arbitration, as the focus of this thesis, has a fundamental role on sustainability and development of investment arbitration as well as international investment system as a whole. Consequently power as a latent, but essential factor in investment arbitration, shall be scrutinised.
|Date of Award
|Federico Ortino (Supervisor) & Penelope Green (Supervisor)