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The Decision Making Process of Investor-State Arbitration Tribunals

ISBN13: 9789041196002
Published: January 2019
Publisher: Kluwer Law International
Country of Publication: The Netherlands
Format: Hardback
Price: £164.00

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The Decision-Making Process of Investor-State Arbitration Tribunals explores the ways in which arbitral tribunals interpret the law in investor-state disputes. It examines the emergence of a specialised way of decision-making adapted to the characteristics and needs of investment arbitration.

In the course of a single investor-state dispute, an arbitrator may make numerous decisions, from interpreting the treaty or national laws to taking into account case law, customs and policies. In practice, this process raises important issues regarding the consistency of arbitral awards and the predictability and legitimacy of the arbitral decision-making process.

This is the first book to offer an in-depth analysis of the transnational characteristics of investment arbitration and to analyse the interpretive arguments of investment tribunals. It particularly examines the way tribunals reason their awards making reference to treaties, precedent, policies, general principles of law and customary law in their decision-making process.

What’s in this book:

The process arbitrators follow to render an award raises important concerns regarding the way arbitral awards are reasoned, and the further predictability and legitimacy of the investment arbitration framework. Drawing on publicly available arbitral case law supplemented with personal interviews with investment arbitrators, the author touches on such concepts and practices as the following:

  • an overview of various decision-making genres of arbitral tribunals: attitudinal, economic, strategic and legal;
  • the legal argumentation triptych of language–rhetoric–dialogue;
  • the specific language arbitrators have developed when interpreting the law;
  • how arbitrators use the concepts ‘standards’, ‘rules’, ’principles’ and ‘rights’;
  • the importance of the legal reasoning of arbitral awards and the role of rhetoric therein;
  • concepts of ‘acceptability’, ‘audience’ and ‘legitimacy’;
  • limitations of the public international law interpretive methodology enshrined in the Vienna Convention;
  • interpretation of precedents, customary law, general principles of law and policies;
  • the way national and international legal orders interact in the context of interpretation; and
  • how decision-making is connected to the issues of predictability, consistency and the rule of law.
The core of the book proposes a novel, full-fledged dialogical network theory for analysing the interpretation process.

How this will help you:

As an exemplary demonstration of developing theory to keep up with practice, this unique book provides a deeply engaged means for enhancing the practice of international arbitration. Its introduction of a new field of interdisciplinary analysis employing legal argumentation theories is sure to provide inestimable guidance for institutions and policymakers, especially in light of recent proposals for the creation of a permanent investment arbitration court. Given that unveiling the legal decision-making process is critical for the well-being of the whole dispute resolution procedure, and that being aware of how arbitrators interpret the law can constitute a roadmap for counsel’s arguments and approaches when dealing with cross-border disputes, the topic of this book is relevant for both academics and practitioners, and its significance can only grow as recourse to investor-state arbitration continues to expand.

Arbitration and Alternative Dispute Resolution
List of Abbreviations
Arbitral Decision-Making
Introduction to Part I
Decision-Making and Legal Argumentation
Conclusion to Part I
Introduction to Part II
Arbitral Legal Language
Conclusion to Part II
Introduction to Part III
The Dynamics of Reasoning
The Functions of Reasoning
Conclusion to Part III
Introduction to Part IV
Dialogical Network: Theory
Dialogical Network: Practice
Conclusion to Part IV
Annex Interview Questions
Table of Cases
Table of Legislation

Series: International Arbitration Law Library

Arbitrators and Arbitral Institutions: Liability and Insurance ISBN 9789403509051
To be published July 2020
Kluwer Law International
Complex Arbitrations: Multiparty, Multicontract & Multi-Issue 2nd ed ISBN 9789403512617
To be published July 2020
Kluwer Law International
Interpretation of Contracts in Comparative and Uniform Law ISBN 9789403511306
Published May 2019
Kluwer Law International
The Functions of Arbitral Institutions ISBN 9789041162175
Published August 2016
Kluwer Law International
Party-Appointed Arbitrators in International Commercial Arbitration ISBN 9789041166715
Published April 2016
Kluwer Law International
International Arbitration and Cross-Border Insolvency: Comparative Perspectives ISBN 9789041154194
Published September 2014
Kluwer Law International
Piercing the Veil of State Enterprises in International Arbitration ISBN 9789041151629
Published April 2014
Kluwer Law International
International Arbitration and the Permanent Court of Arbitration ISBN 9789041147660
Published August 2013
Kluwer Law International
Challenge and Disqualification of Arbitrators in International Arbitration ISBN 9789041137999
Published January 2012
Kluwer Law International
China-Africa Dispute Settlement: The Law, Economics and Culture of Arbitration ISBN 9789041136749
Published November 2011
Kluwer Law International
Confidentiality in International Commercial Arbitration ISBN 9789041132260
Published July 2011
Kluwer Law International
Bias Challenges in International Arbitration: The Need for a Real Danger Test ISBN 9789041131911
Published November 2009
Kluwer Law International
Arbitrability: International & Comparative perspectives ISBN 9789041127303
Published March 2009
Kluwer Law International
Force Majeure and Hardship Under General Contract Principles ISBN 9789041127921
Published January 2009
Kluwer Law International
Pervasive Problems in International Arbitration ISBN 9789041124500
Published May 2006
Kluwer Law International
Provisional Measures in International Commercial Arbitration ISBN 9789041123534
Published August 2005
Kluwer Law International
Corruption in International Trade and Commercial Arbitration ISBN 9789041122360
Published March 2004
Kluwer Law International
The Healthy Award: Challenges in International Commercial Arbitration ISBN 9789041120113
Published March 2003
Kluwer Law International
The International Effectiveness of the Annulment of an Arbitral Award ISBN 9789041117175
Published January 2002
Kluwer Law International
Arbitration in Complex International Contracts ISBN 9789041116628
Published October 2001
Kluwer Law International
Insolvency Proceedings and Commercial Arbitration ISBN 9789041111159
Published June 2000
Kluwer Law International
Arbitration and Mediation in International Business ISBN 9789041102423
Published June 1998
Kluwer Law International
Out of print
Iran-United States Claims Tribunal in Action ISBN 9781853339028
Published March 1993
Brill Academic Publishers
Out of print