Towards Consistency in International Investment Jurisprudence: A Preliminary Ruling System for ICSID Arbitration

Securities

Towards Consistency in International Investment Jurisprudence: A Preliminary Ruling System for ICSID Arbitration

By Katharina Diel-Gligor
Brill Nijhoff March 2017

Specifications

ISBN-13
9789004337909
Publisher
Brill Nijhoff
Publication
March 2017
Format
Hardback
Jurisdiction
Netherlands ? Countri(es) for reference only

Details

Investor-State arbitration is currently a much-debated topic, both within the legal community and in the public at large.

In Towards Consistency in International Investment Jurisprudence, Katharina Diel-Gligor addresses the alleged proliferation of inconsistent decision-making in this field – one of the main points of concern raised in the ongoing discussions. After exploring whether such criticism is appropriate at all, she goes on to examine the different causes, forms, and manifestations of the inconsistencies that exist through a detailed analysis of ICSID arbitration.

The author then canvasses possible approaches to reform and concludes that an ICSID preliminary ruling system – the practicalities of which are set out in the study – is a suitable means for enhancing consistency in investment arbitration and moving towards a jurisprudence constante.

Table of Contents

Acknowledgements
List of Abbreviations
Introduction
A. Subject Area: International Investment Law and Arbitration
B. Central Problem: Inconsistency in International Investment Jurisprudence
C. Central Goal: Targeted, Effective and Feasible Approach for Reform
D. Research Questions and Hypotheses
E. Research Methods
F. Course of Investigation
Chapter 1 – Contextual Framework and Object of Study
A. Preliminary Considerations
B. Contextual Framework: International Investment Law and Arbitration
I. Development of (Inter-) National Investment Law and Policy
II. Development of International Investment Arbitration
C. Object of Study: ICSID Arbitration
I. Basic Information
II. Relative Strengths and Weaknesses: Comparative Law Analysis of ICSID and UNCITRAL Arbitration
III. Summary and Evaluation
D. Interim Conclusion
Chapter 2 – Analysis of Problem: Inconsistency in ICSID Investment Jurisprudence
A. Preliminary Considerations
I. “Consistency” and “Jurisprudence Constante” – Working Definitions and Premises
II. ICSID Jurisprudence in the Focus of Criticism – Rationales
B. Questions of Principle
I. Is Jurisprudential Consistency Desirable At All?
II. Is the Inconsistency Criticism Appropriate At All?
C. Forms of Inconsistencies
I. Same Dispute, but Multiple Proceedings
II. Different Disputes, but Same Legal Issues
III. Temporal Distinction: Parallel vs. Successive Proceedings
D. Causes of Inconsistencies
I. Systemic Causes: Basic Structures of ICSID Arbitration
II. Methodological Causes: Legal Interpretation in ICSID Arbitral Decisions
E. Occurences of Inconsistencies: Qualitative-Empirical Study
I. Law Governing Jurisdiction
II. Procedural Law
III. Substantive Law
IV. Summary and Evaluation
F. Interim Conclusion
Chapter 3 – Reform Proposal: Curing Inconsistent ICSID Investment Jurisprudence
A. Preliminary Considerations
B. Overview of Reform Proposals to Enhance Consistency
I. Instruments without ICSID Specificity
II. Instruments with ICSID Specificity
III. Evaluative Choice of the Preferable Instrument
C. Preferable Reform Proposal: Draft of an ICSID Preliminary Ruling System
I. Conceptual Models
II. Legal Implementation
III. Basic Structures
IV. Admissible Questions
V. Submission of Questions
VI. Course of Proceedings
VII. Effect of Preliminary Rulings
VIII. Summary and Evaluation
D. Interim Conclusion
Conclusion
A. Final Summary
B. Research Questions and Hypotheses: Answers and Confirmations
C. Prospects and Outlook
Summary in German
Annex
A. Annex to Chapter 1
B. Annex to Chapter 2
C. Annex to Chapter 3
Table of Cases
Bibliography
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