Investor Presentaiton
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INVESTOR-STATE DISPUTE SETTLEMENT: A SEQUEL
2. Creating a standing international investment court
This option implies the replacement of the current system of ad
hoc arbitral tribunals with a standing international court. The latter
would consist of judges appointed or elected by States on a
permanent basis, for example, for a fixed term. It could also have an
appeals chamber.
99222
This approach rests on the theory that investment treaty
arbitration is analogous to domestic judicial review in public law
because "it involves an adjudicative body having the competence to
determine, in response to a claim by an individual, the legality of
the use of sovereign authority, and to award a remedy for unlawful
State conduct." Under this view, a private model of adjudication
(arbitration) is inappropriate for matters that deal with public law.
The latter requires objective guarantees of independence and
impartiality of judges which can only be provided by a security of
tenure to insulate the judge from outside interests such as an
interest in repeat appointments and in maintaining the arbitration
industry. Only a court with tenured judges, the argument goes,
would establish a fair system widely regarded to be free of
perceived bias. 223
A standing investment court would be an institutional public
good serving the interests of investors, States and other
stakeholders. The court would address most of the problems
outlined above: it would go a long way towards ensuring the
legitimacy and transparency of the system, facilitating consistency
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223
Van Harten 2008.
Ibid.
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