Date of Award

5-11-2020

Document Type

Dissertation

Degree Name

Doctor of Philosophy (PhD)

First Advisor

Gus Van Harten

Abstract

ISDS is a relatively young and dynamic regime. It faces challenges for which other adjudicative systems, after centuries of development, have found solutions. In ISDS, fair rules and procedures are essential since ISDS is an adjudicative regime said to be based on the rule of law. The importance of complex and carefully crafted rules and procedural safeguards is underscored by the impact of ISDS on a wide array of parties and interests and by its encroachment on the powers of sovereign states affecting their populations. Yet ISDS is criticized as unfair and open to unacceptable appearances of bias due to a lack of institutional safeguards. In this thesis, I assess whether these criticisms are compelling. Considering their prevalence in the debates about ISDS, I focus on issues of neutrality and fairness and, in particular, on two core values: (1) adjudicative independence and impartiality; and (2) the right of standing. I do so by examining institutional measures adopted to safeguard these values. These include: a) methods of appointment and case assignment; b) protections of the independence of individual adjudicators in the form of tenure and financial security; and c) guaranteed standing for parties with a legal interest. The goal of the thesis is to evaluate institutional safeguards of these values in ISDS through the method of a comparative study of adjudicative bodies in various contexts and to map the spectrum of safeguards used by other forums based on their common comparisons and similarities with ISDS. The results of the research highlight that, although ISDS has been lauded for its perceived neutrality and as a system superior to domestic courts, it is the regime with the weakest safeguards among all comparators, while domestic courts employ the strongest institutional safeguards. The central conclusion is that ISDS has systemic flaws and failures because it lacks mechanisms to safeguard the examined values, thus substantiating the relevant concerns about the institutional design of ISDS. To safeguard these essential values, it appears unavoidable that ISDS must be rejected in its current form.

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