State Responsibility for Judicial Acts in Investment Arbitration

This thesis deals with the issue of state responsibility for judicial acts in investment arbitration. In general, it is undisputed that states can be held internationally liable for the conduct of their judiciary. The protection against denial of justice was traditionally the main international standard used for determining state responsibility for judicial acts, characterized by a relatively high threshold. Only with the proliferation of primary obligations of states towards individuals, the practical relevance of this standard was somewhat decreased. Nonetheless, this type of state responsibility – arising from domestic judicial acts – remains particularly sensitive due to the special nature and position of the national judiciary. It is commonly noted that role of national courts and their decision-making process is so particular that international courts and tribunals should not treat national judicial acts in an identical manner as acts of other state organs. Against this background, this thesis examines whether and to what extent the investment tribunals’ practice on cases concerning domestic judicial acts differs from comparable practices of other international adjudicatory bodies – in particular, the International Court of Justice and the European Court of Human Rights. Through the analysis of various standards of protection – when applied to judicial acts – and the relevant case law, the thesis aims to address two different questions. Firstly, whether the standards of protection granted investment treaties substantially differ from standards commonly applied by other international adjudicatory bodies. Secondly, if the investment tribunals practice’ in cases concerning host states’ judicial acts is influenced only by these substantive standards or protection, or it is also shaped by more general features of investment law and the investor investor-state dispute settlement mechanism. Ultimately, this research – through the analysis of these particular types of investor-state disputes – tries to offer novel insights into the deficiencies of the ISDS regime that should be taken into account, especially in light of the current initiatives for the reform of this regime.