Reference : Between Rights and Remedies: The Access to Investment Treaty Arbitration as a Substan...
Scientific journals : Article
Law, criminology & political science : European & international law
Law / European Law
http://hdl.handle.net/10993/35239
Between Rights and Remedies: The Access to Investment Treaty Arbitration as a Substantive Right of Foreign Investors
English
Radović, Relja mailto [University of Luxembourg > Faculty of Law, Economics and Finance (FDEF) > Law Research Unit >]
Mar-2019
Journal of International Dispute Settlement
Oxford University Press
10
1
42-68
Yes (verified by ORBilu)
International
2040-3585
2040-3593
Oxford
United Kingdom
[en] Arbitrators in investment treaty arbitration have not been reluctant to express their views that the access to international arbitration forms part of the substantive protection of investors. The present article examines what is the added legal value of such views, and whether they are capable of requalifying procedural rules as substantive ones, or alternatively, breaking the separation line between substantive and procedural rules. This is discussed in the context of the application of most-favoured-nation clauses to dispute settlement clauses, as a case study. It is argued that the arbitral qualification of dispute resolution clauses as a means of investors’ protection cannot prompt a change regarding their legal nature, and has primarily an instrumental role in legitimizing expansionary interpretive outcomes. But the fact that a blurred separation line between substantive and procedural rules appears acceptable in investment treaty arbitration implies fragmentation from general international law in that respect, effected through arbitral lawmaking.
Fonds National de la Recherche - FnR
http://hdl.handle.net/10993/35239
10.1093/jnlids/idy003
FnR ; FNR9128105 > Relja Radovic > DEMCON > Demystifying Consent: Examining the role of State consent to arbitration in the light of new developments in international investment arbitration > 01/06/2015 > 31/05/2018 > 2014

File(s) associated to this reference

Fulltext file(s):

FileCommentaryVersionSizeAccess
Limited access
idy003_advance.pdfAuthor preprint286.41 kBRequest a copy

Bookmark and Share SFX Query

All documents in ORBilu are protected by a user license.