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

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

Author: Katharina Diel-Gligor
Publisher: Brill Nijhoff
ISBN: 9789004337909
Published In: March 2017
Format: Hardback
Jurisdiction: Netherlands ? Disclaimer:
Countri(es) stated herein are used as reference only

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Contents

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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.

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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