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- Publisher Website: 10.2202/1938-2545.1044
- Scopus: eid_2-s2.0-79955604576
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Article: Investor-state arbitration: Proportionality's new frontier
Title | Investor-state arbitration: Proportionality's new frontier |
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Authors | |
Keywords | balancing proportionality arbitration International Center for the Settlement of Investment Disputes (ICSID) Principal-Agent framework judicialization |
Issue Date | 2010 |
Citation | Law and Ethics of Human Rights, 2010, v. 4, n. 1, article no. 4 How to Cite? |
Abstract | The arbitral world is at a crucial point in its historical development, poised between two conflicting conceptions of its nature, purpose, and political legitimacy. Formally, the arbitrator is an agent of the contracting parties in dispute, a creature of a discrete contract gone wrong. Yet, increasingly, arbitrators are treated as agents of a larger global community, and arbitration houses concern themselves with the general and prospective impact of important awards. In this paper, I address these questions, first, from the standpoint of delegation theory. In Part I, I introduce the basic "Principal-Agent" framework [P-A] used by social scientists to explain why actors create new institutions, and then briefly discuss how P-A has been applied to the study of courts. Part II uses delegation theory to frame discussion of arbitration as a mode of governance for transnational business and investment. In Part III, I argue that the International Center for the Settlement of Investment Disputes (ICSID) is presently in the throes of judicialization, indicators of which include the enhanced use of precedent-based argumentation and justification, the acceptance of third-party briefs, and a flirtation with proportionality balancing. Part IV focuses on the first wave of awards rendered by ICSID tribunals pursuant to Argentina's response to the crushing economic crisis of 2000-02, wherein proportionality emerged, adapted from the jurisprudence of the Appellate Body of the World Trade Organization. Copyright © 2010 Berkeley Electronic Press. All rights reserved. |
Persistent Identifier | http://hdl.handle.net/10722/300166 |
DC Field | Value | Language |
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dc.contributor.author | Stone Sweet, Alec | - |
dc.date.accessioned | 2021-06-04T05:49:11Z | - |
dc.date.available | 2021-06-04T05:49:11Z | - |
dc.date.issued | 2010 | - |
dc.identifier.citation | Law and Ethics of Human Rights, 2010, v. 4, n. 1, article no. 4 | - |
dc.identifier.uri | http://hdl.handle.net/10722/300166 | - |
dc.description.abstract | The arbitral world is at a crucial point in its historical development, poised between two conflicting conceptions of its nature, purpose, and political legitimacy. Formally, the arbitrator is an agent of the contracting parties in dispute, a creature of a discrete contract gone wrong. Yet, increasingly, arbitrators are treated as agents of a larger global community, and arbitration houses concern themselves with the general and prospective impact of important awards. In this paper, I address these questions, first, from the standpoint of delegation theory. In Part I, I introduce the basic "Principal-Agent" framework [P-A] used by social scientists to explain why actors create new institutions, and then briefly discuss how P-A has been applied to the study of courts. Part II uses delegation theory to frame discussion of arbitration as a mode of governance for transnational business and investment. In Part III, I argue that the International Center for the Settlement of Investment Disputes (ICSID) is presently in the throes of judicialization, indicators of which include the enhanced use of precedent-based argumentation and justification, the acceptance of third-party briefs, and a flirtation with proportionality balancing. Part IV focuses on the first wave of awards rendered by ICSID tribunals pursuant to Argentina's response to the crushing economic crisis of 2000-02, wherein proportionality emerged, adapted from the jurisprudence of the Appellate Body of the World Trade Organization. Copyright © 2010 Berkeley Electronic Press. All rights reserved. | - |
dc.language | eng | - |
dc.relation.ispartof | Law and Ethics of Human Rights | - |
dc.subject | balancing | - |
dc.subject | proportionality | - |
dc.subject | arbitration | - |
dc.subject | International Center for the Settlement of Investment Disputes (ICSID) | - |
dc.subject | Principal-Agent framework | - |
dc.subject | judicialization | - |
dc.title | Investor-state arbitration: Proportionality's new frontier | - |
dc.type | Article | - |
dc.description.nature | link_to_subscribed_fulltext | - |
dc.identifier.doi | 10.2202/1938-2545.1044 | - |
dc.identifier.scopus | eid_2-s2.0-79955604576 | - |
dc.identifier.volume | 4 | - |
dc.identifier.issue | 1 | - |
dc.identifier.spage | article no. 4 | - |
dc.identifier.epage | article no. 4 | - |
dc.identifier.eissn | 1938-2545 | - |