Screening Powers in Investment Arbitration: Questions of Legal Change and Legitimacy

Screening powers of arbitral institutions over requests initiating investment arbitrations are often justified by the need to prevent embarrassment of states and to avoid unnecessary costs. This Chapter examines possible effects of such powers, particularly on the arbitral development of the jurisdictional standards governing investment arbitration. Can administrative organs filter the demands for legal change that will be heard before tribunals, and if so, does this diminish the legitimacy of their screening powers? It is argued that screening powers offer possibilities of setting arbitrators’ agenda in terms of which demands for legal change will be considered. This could affect their legitimacy, but it does not mean that screening powers have completely lost their justification. It is suggested that such powers must be exercised with an extreme level of diligence, requiring an almost complete elimination of legal considerations, in order to safeguard their legitimacy.