Investor Presentaiton
96
INVESTOR-STATE DISPUTE SETTLEMENT: A SEQUEL
lawyers who serve as arbitrators and counsel in IIA-based
proceedings. An additional factor is that previous arbitral awards are
referred to as persuasive authority in subsequent cases. Hence there
could be an incentive to decide a case in a way that would be
beneficial to an arbitrator's client in the second case.
A separate facet of this problem stems from the fact that IIA
disputes are governed by a relatively uniform legal field and that a
few problematic IIA questions keep arising again and again. By
researching the record of a particular arbitrator in earlier cases, one
can predict in advance the position he or she is likely to take on a
given issue. If arbitrators sit repeatedly in cases that address similar
vexing issues, this gives rise to concerns that they have already
taken a position on an issue (whether pro-State or pro-investor) and
thus might not be in a position to be open-minded. Somewhat
similarly, an individual's expressing an opinion on a particular issue
in academic writings may be interpreted as evidence of "pre-
judging" that issue. These matters are novel and in the process of
development; so far, known attempts to challenge arbitrators on
these grounds have been unsuccessful.90
G. Claims by investors on their own behalf and on behalf of an
enterprise
Most IIAS only authorize foreign investors to bring ISDS claims
against host States. The investor, however, is only entitled to submit
90
A claimant's challenge alleging "pre-judgment" of an issue due to a
position taken by the arbitrator in a prior case, as expressed in her separate
opinion, was reportedly dismissed (EURAM v. Slovak Republic,
UNCITRAL, decision not public). A challenge based on academic writings
was unsuccessful to the extent the author (arbitrator) expressed only a view
about a legal principle and not an opinion about its application to the case
under review (Urbaser v. Argentina, ICSID Case No. ARB/07/26,
Decision on Claimants' Proposal to Disqualify Professor Campbell
McLachlan, Arbitrator, 12 August 2010).
UNCTAD Series on International Investment Agreements IIView entire presentation