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Private or public adjudication? Procedure, substance and legitimacy
Published online by Cambridge University Press: 04 June 2021
Abstract
This article identifies the essential differences between public and private adjudication and their implications for the legitimacy and efficiency of dispute resolution institutions, as well as the rule of law. Public adjudication comes at a significant cost for the taxpayers but helps secure a consistent body of case law, promotes public policy goals, and allows third parties to know the rules of conduct in advance to prevent undesirable activities. This article shows that procedural rules of these institutions (regardless of whether the procedure is called adjudication or arbitration) differ when it comes to the appointment of adjudicators, their professional background, and how long they serve. Public and private institutions consistently follow different approaches to transparency and confidentiality of proceedings, the application of primarily substantive rules or principles to resolve disagreements, and the extent to which decisions can be reviewed internally or externally. By examining the procedural rules and practices of selected institutions, the article asserts three main claims. First, the choice of public or private adjudication is likely to lead to different procedural outcomes, including the cost of the process and the duration. Second, the legitimacy of any dispute resolution system must rest on both procedural and substantive aspects, while in reality these two are often viewed in isolation. Finally, the article shows how institutions could learn from each other to become more efficient and strengthen their legitimacy.
Keywords
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- ORIGINAL ARTICLE
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- © The Author(s), 2021. Published by Cambridge University Press
Footnotes
*
I would like to thank Caroline Balme, Eda Cosar Demirkol, Marija Đorđeska, Aleksander Kalisz, Ira Ryk-Lakhman, and Lizaveta Trakhalina and for their research assistance, as well as Julian Arato, Kanstantsin Dzehtsiarou, Christopher Greenwood, Jean Ho, Tomoko Ishikawa, Mikael Rask Madsen, Jan van Zyl Smit, and late Judge Stephen F. Williams for their comments on earlier versions of this article.
References
1 See, e.g., United Nations Commission on International Trade Law (UNCITRAL), Working Group III: Investor-State Dispute Settlement Reform, available at uncitral.un.org/en/working_groups/3/investor-state; ICSID, Rules and Regulations Amendment Process, available at icsid.worldbank.org/resources/rules-and-regulations/icsid-rules-and-regulations-amendment-working-papers.
2 For example, the default dispute resolution mechanism under the 1982 United Nations Convention on the Law of the Sea is called arbitration, while its funding model and the nature of interest served by it largely reflects that of public adjudication such as the ICJ. See Annex VII, Art. 7, 1982 UN Convention on the Law of the Sea. Despite having ‘court’ in its title, the International Court of Arbitration is the world’s leading arbitral institution; see iccwbo.org/dispute-resolution-services/icc-international-court-arbitration/.
3 Different views exist on the distinction between public and private law. One view is that in public law the state imposes imperative rules of behaviour, which the private parties cannot change. Private law regulations normally set the limits of the allowed behaviour and the market participants to change the default rules within such limits. For a historical analysis of this distinction see J. H. Merryman, ‘The Public Law – Private Law Distinction in European and American Law’, (1968) 17 Journal of Public Law 3; for an in-depth analysis of the private-public law distinction see C. Harrow, ‘“Public” and “Private” Law: Definition without Distinction’, (1980) 43(3) Modern Law Review 241; see also Section 4.1, infra.
4 See, e.g., J. Goldsmith and D. Levinson, ‘Law for states: International law, constitutional law, public law’, (2008) 122 Harvard Law Review 1791, at 1867; see also Report of the Executive Directors of the International Bank for Reconstruction and Development on the Convention on the Settlement of Investment Disputes between States and Nationals of Other State, ICSID/15 April 2006, at 35 (The term ‘international law’ as used in this context should be understood in the sense given to it by Art. 38(1) of the Statute of the International Court of Justice, allowance being made for the fact that Art. 38 was designed to apply to inter-state disputes.); S. Brekoulakis and M. Devaney, ‘Public-Private Arbitration and the Public Interest under English Law’, (2017) 80 Modern Law Review 22 (‘historical development of arbitration as an exclusively private mode of dispute resolution … results in a conceptual and legal void in respect of how public interest is accounted for, and protected, in arbitrations involving public bodies …’).
5 See, e.g., however, J. H. Dalhuisen, ‘The Operation of the International Commercial and Financial Legal Order: The Lex Mercatoria and its Application – Moving from the Theories of Legal Positivism and Formalism to the Practicalities of Legal Pluralism and Dynamism’, (2008) 19(5) European Business Law Review 985.
6 W. M. Landes and R. A. Posner, ‘Adjudication as a Private Good’, (1979) 8(2) Journal of Legal Studies 235 (‘The governmental institutions of primitive societies are often rudimentary to the point of nonexistence. There may be no legislature, no permanent executive … no government bureaucracy, no public judges, no public prosecutors or police-indeed, no concept of public law. Yet even in such societies, there will often be adjudication. For example, the Yurok Indians of California had no government at all but they did have a well-developed system of private judging.’).
7 E.g., in France and England. See A. Smith, Wealth of Nations (2007), at 557.
8 The growing power of private actors has led to the co-operation between public and private actors under different forms of public-private governance. See L. C. Backer, ‘Private Actors and Public Governance Beyond the State: The Multinational Corporation, the Financial Stability Board and the Global Governance Order’, (2011) 18(2) Indiana Journal of Global Legal Studies 751.
9 See, e.g., E. Glaeser et al., ‘Securing Property Rights’, (2016) Working Paper 22701, National Bureau of Economic Research (‘A central challenge in securing property rights is the subversion of justice through legal skill, bribery, or physical force by the strong—the state or its powerful citizens—against the weak’).
10 Investors also avoid domestic courts because of lack of judicial expertise or the weak rule of law. See L. E. Trakman, ‘Choosing Domestic Courts Over Investor-State Arbitration: Australia’s Repudiation of the Status Quo’, (2012) 35(3) UNSW Law Journal 998.
11 On the development of ‘international private rights’ alongside the rights of states see A. Mills, The Confluence of Public and Private International Law: Justice, Pluralism and Subsidiarity in the International Constitutional Ordering of private Law (2009), at 264.
12 The distrust on the part of host states might result from the large size and high complexity of multinational enterprises, and the lack of transparency of their transactions (E. Pausenberger, ‘How Powerful Are the Multinational Corporations?’, (1983) 18(3) Intereconomics 130). For more recent research on how multinational companies erode state power in the international system and within national boundaries see S. Kapfer, ‘Multinational Corporations and the Erosion of State Sovereignty’, (2006) Illinois State University Conference for Students of Political Science.
13 See, e.g., S. D. Franck, ‘The Legitimacy Crisis in Investment Treaty Arbitration: Privatizing Public International Law Through Inconsistent Decisions’, (2005) 73(4) Fordham Law Review 1521.
14 For example, former shareholders of once the largest Russian oil company Yukos initiated proceedings related to the largely same set of facts in US domestic courts, arbitration under the rules of the International Chamber of Commerce, Arbitration Institute of the Stockholm Chamber of Commerce, investor-state arbitration acting under the auspices of the Permanent Court of Arbitration, and the ECtHR: In re Yukos Oil Co., 321 B.R. 396 (Bankr. S.D. Tex. 2005); Yukos Capital Sarl and Rosnetf, Award, Arbitration Court of the International Chamber of Commerce, 19 September 2006; OAO Neftyanaya Kompaniya Yukos v. Russia, Judgment of 20 September 2011, ECHR (No. 14902/04); RosInvestCo UK Ltd. v. The Russian Federation, Final Award of 12 September 2010, SCC Case No. V079/2005; Hulley Enterprises Limited (Cyprus) v. The Russian Federation, PCA Case No. AA 226, Final Award of 18 July 2014 and three related awards.
15 See, e.g., Y. Kryvoi et al., ‘Empirical Study: Corporate Restructuring and Investment Treaty Protections’, 2020, BIICL/Baker McKenzie, available at ssrn.com/abstract=3560814.
16 The world’s business international commercial arbitration institution outside China, see J. Clanchy, ‘Arbitration statistics 2018: London bucks downward trends’, LexisNexis Blog, 20 June 2019, available at www.lexisnexis.co.uk/blog/dispute-resolution/arbitration-statistics-2018-london-bucks-downward-trends.
17 The world’s second busiest commercial arbitration institution outside China, see ibid.
18 Y. Kryvoi, ‘The Path of Investor-State Disputes: From Compensation Commissions to Arbitral Institutions’, (2019) 1 ICSID Review 19.
19 S. Djankov et al., ‘The New Comparative Economics’, (2003) 31 Journal of Comparative Economics 595.
20 Ibid.
21 Political risk insurance is another alternative for the protection of investments of foreign investors, see L. Johnson, L. Sachs and J. Sachs, ‘Investor-State Dispute Settlement, Public Interest and U.S. Domestic Law’, Columbia Center on Sustainable Investment (CCSI) Policy Paper 4, May 2015, available at ccsi.columbia.edu/files/2015/05/Investor-State-Dispute-Settlement-Public-Interest-and-U.S.-Domestic-Law-FINAL-May-19-8.pdf.
22 R. H. Coase, ‘The Problem of Social Cost’, (1960) 3 Journal of Law & Economics 1.
23 Case Concerning Elettronica Sicula S.p.A. (ELSI) (United States of America v. Italy), Merits, Judgment of 20 July 1989, [1989] ICJ Rep. 15, at 50, paras. 69–74.
24 Commentators also refer to the ELSI case as an example of an investment dispute before the ICJ. See, e.g., S. D. Murphy, ‘The ELSI Case: An Investment Dispute at the International Court of Justice’, (1991) 16(2) Yale Journal of International Law 391.
25 Treaty of Friendship, Commerce and Navigation between the United States of America and the Italian Republic, dated 2 February 1948 (FCN Treaty).
26 Judges sitting in this case were José Maria Ruda (President), Shigeru Oda, Robert Ago, Stephen M. Schwebel, and Sir Robert Jennings, who were all well-respected jurists with expertise in the area of public international law. Section 3.1 of this article includes further discussion on how and for how long the ICJ judges are appointed.
27 See Case Concerning Elettronica Sicula S.p.A. (ELSI), supra note 23.
28 1945 Statute of the International Court of Justice (ICJ Statute), Art. 60.
29 1953 European Convention of Human Rights (ECHR), Art.1 of Protocol 1. According to one survey, this right is among the most frequently violated Convention rights, and as of 1 January 2010, 14.58% of all judgments where the ECtHR found a violation of the Convention concerned the right to property. See the information, available at www.echr.coe.int/Documents/Facts_Figures_1959_2009_ENG.pdf.
30 Judges sitting in this case were Christos Rozakis (President), Nina Vajić, Khanlar Hajiyev, Dean Spielmann, Sverre Erik Jebens, Giorgio Malinverni, and Andrey Bushev (ad hoc judge).
31 See Section 3, infra.
32 See OAO Neftyanaya Kompaniya Yukos v. Russia, supra note 14.
33 The Court eventually awarded its largest ever amount of compensation and ordered Russia to pay approximately €1.9 billion to the shareholders of Yukos. For a case comment with the relevant examination of the background facts of the case see E. Brabendere, ‘Introductory Note to OAO Neftyanaya Kompaniya Yukos v. Russia (Eur. Ct. H. R.)’, (2016) 55 International Legal Materials 474.
34 Mobil Corporation, Venezuela Holdings, B.V., et al. v. Bolivarian Republic of Venezuela, ICSID Case No. ARB/07/27, Award of The Tribunal of 9 October 2014.
35 This dispute arose out of a series of measures that Venezuela adopted between 2004 and 2007 concerning its legal framework in the oil and gas sector, which had a direct impact on the investments of the claimants in a number of projects.
36 See Mobil v. Venezuela, supra note 34.
37 Arts. 50–52 of the 1965 Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention) and 2006 ICSID Rules of Procedure for Arbitration Proceedings (ICSID Arbitration Rules) 50–55 set out the relevant procedures for such applications.
38 See Art. 31.1 of the 2016 SIAC Rules; 2017 ICC Rules of Arbitration, Art. 22(3).
39 2016 SIAC Rules, Art. 31; 2017 ICC Rules of Arbitration, Art. 21(1).
40 If they fail to agree, the International Court of Arbitration (under Art. 18(1) of the 2017 ICC Rules of Arbitration) or the tribunal (under 2017 SIAC Investment Arbitration Rules, Art. 18(1)) would decide the seat of arbitration.
41 2017 ICC Rules of Arbitration, Arts. 12–13; 2016 SIAC Rules, Arts. 9–17 set out the relevant procedures for the appointment of arbitrators. Section 3 of this article includes further discussion on the constitution of arbitral tribunals under the rules of ICC and SIAC, and on the identity of arbitrators.
42 2016 SIAC Rules, Art. 32(11); 2017 ICC Rules of Arbitration, Art. 35(6). As per 2017 ICC Rules of Arbitration Art. 34, ICC tribunals shall submit the award before signing to the International Court of Arbitration, which may make some modifications as to the form of the award and draw the tribunal’s attention to points of substance without interfering with the tribunal’s liberty of decision.
43 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), 330 UNTS 3, Art. V.
44 J. P. Kastellac, ‘Racial diversity and judicial influence on appellate courts’, (2013) 57(1) American Journal of Political Science 167.
45 S. Farhang and G. Wawro, ‘Institutional dynamics on the US court of appeals. Minority representation under panel decision making’, (2004) 20(2) Journal of Law, Economics and Organization 299, at 330.
46 A. N. Glynn and M. Sen, ‘Identifying Judicial Empathy: Does Having Daughters Cause Judges to Rule for Women’s Issues?’, (2015) 59(1) American Journal of Political Science 37, at 54.
47 See, e.g., J. Biskupic, ‘6 Supreme Court nominees who faced controversy’, CNN, 4 October 2018, available at edition.cnn.com/2018/10/03/politics/supreme-court-controversial-nominations-justice/index.html.
48 See, e.g., J. Landale, ‘How UK lost International Court of Justice place to India’, BBC, 21 November 2017, available at www.bbc.co.uk/news/uk-politics-42063664.
49 See, e.g., Art. 4.1. of the Rules of Court of the ICJ (1978), Rule 4.1 of the Rules of Court of the European Court of Human Rights (2018), Art. 11.2 of the Arbitration Rules of the International Chamber of Commerce (2017). In the past, however, many compensation commissions did not expect commissioners to be independent or impartial but rather to act as representatives of those who appointed them. Only if they fail to agree on a solution would an independent umpire be appointed. Y. Kryvoi, ‘The Path of Investor-State Disputes: From Compensation Commissions to Arbitral Institutions’, (2019) 33(3) ICSID Review - Foreign Investment Law Journal 743.
50 Under Art. 31.2 and 31.3 of the ICJ Statute, a state party to a case before the court which does not have a judge of its nationality on the bench may choose a person to sit as judge ad hoc in that specific case. Under Rule 29.1(a) of the Rules of the ECtHR, an ad hoc judge may be appointed when the elected judge is unable to sit in the Chamber, withdraws, or is exempted, or if there is none.
51 See ICJ Statute, supra note 28, Art. 10.
52 Ibid., Arts. 5(2), 6.
53 Ibid., Art. 13.
54 See ECHR, supra note 29, Art. 23.
55 Ibid., Arts. 16(1), 17(1).
56 Rule 4 of the Rules of Court, available at www.echr.coe.int/Documents/Rules_Court_ENG.pdf.
57 2016 SIAC Rules, Arts. 9–12.
58 2017 ICC Rules of Arbitration, Art. 12.
59 It must be noted that the ICSID, unlike the ICC and SIAC, is an international organization rather than an NGO as ICC and SIAC. For this reason, the Chairman of the ICSID Administrative Council, where each contracting state has one representative, acts as the designating authority in case of disagreement between the parties. See ICSID Convention, supra note 37, Arts. 4, 38; see also ICSID Arbitration Rules, supra note 37, Rule 4.
61 2013 Handbook of the International Court of Justice 23, available at www.icj-cij.org/public/files/publications/handbook-of-the-court-en.pdf. (‘Of the 103 Members of the Court elected between February 1946 and December 2013, 31 had held judicial office, eight of them having served as chief justice of the supreme court of their respective countries; 41 had been barristers and 75 professors of law; 69 had occupied senior administrative positions, such as legal adviser to the ministry of foreign affairs or ambassador; and 25 had held cabinet rank, two even having been Head of State’).
62 A survey including the data set of judges who sat in the Court from 1998 to 2007 shows that 27.4% of the elected judges have an academic background; 15.3% worked in domestic judiciary; 13.7% worked for the government (administration); 6.4% served on the constitutional courts of their states; and 21.7% have a mixed background in more than of the above-mentioned occupations. See F. J. Bruinsma, ‘Judicial Identities in the European Court of Human Rights’, in A. van Hoek et al. (eds.), Multilevel Governance in Enforcement and Adjudication (2006), at 213.
63 J. Pauwelyn, ‘The Rule of Law without the Rule of Lawyers? Why Investment Arbitrators Are from Mars, Trade Adjudicators Are from Venus’, (2015) 109(4) American Journal of International Law 761, at 783 (concluding that because of different appointment mechanisms, WTO panelists ‘tend to be relatively low-key diplomats … with a government background’, whereas ICSID arbitrators ‘are likely high-powered, elite private lawyers or legal academics’).
64 According to one survey, 78% of the ICC arbitrators are in private practice, 9% of the remaining arbitrators hold academic positions, 9% of the rest of them are (retired) members of the judiciary. See P. Bert and T. Wessing, ‘ICC Arbitrator Appointments: A First Look At the Data’, Kluwer Arbitration Blog, 13 September 2016, available at arbitrationblog.kluwerarbitration.com/2016/09/13/icc-arbitrator-appointments-a-first-look-at-the-data/.
65 See M. Waibel and Y. Wu, ‘Are Arbitrators Political?’, (2017) draft, at 15, available at www.yanhuiwu.com/documents/arbitrator.pdf (showing that 60% work as private practitioners and 38% are full-time academics); Pauwelyn, supra note 63, at 15, 23.
66 See, e.g., A. Roberts, ‘Power and Persuasion in Investment Treaty Interpretation: The Dual Role of States’, (2010) 104 American Journal of International Law 179, at 207; D. Schneiderman, ‘Judicial Politics and International Investment Arbitration: Seeking an Explanation for Conflicting Outcomes’, (2010) 30(2) Northwestern Journal of International Law & Business 383; M. Sornarajah, ‘A Coming Crisis: Expansionary Trends in Investment Treaty Arbitration in Arbitration’, in K. P. Sauvant (ed.), Appeals Mechanism in Investment Disputes (2008), at 39, 41–2.
67 For example, the ICJ judges benefit from diplomatic privileges and immunities and cannot be removed without the unanimous opinion of the other judges. See ICJ Statute, supra note 28, Arts. 18, 19.
68 For example, according to one ICJ insider interviewed by the author, ruling against Nicaragua may help to secure more votes in the re-election process, because Costa Rica, Colombia and Honduras all had disputes with Nicaragua recently. See ICJ, Judgments, Advisory Opinions and Orders, available at www.icj-cij.org/en/decisions.
69 C. Creamer and Z. Godzimirska, ‘The Job Market for Justice: Screening and Selecting Candidates for the International Court of Justice’, (2017) 30(4) Leiden Journal of International Law 947; E. Voeten, ‘The Politics of International Judicial Appointments’, (2009) 9(2) Chicago Journal of International Law 387; D. Terris et al., ‘Toward a Community of International Judges’, (2008) 30 Loyola of Los Angeles International and Comparative Law Review 419.
70 E. Voeten, ‘The Impartiality of International Judges: Evidence from the European Court of Human Rights’, (2008) 102 American Political Science Review 231, at 417, 422.
71 A. Strezhnev, ‘Detecting Bias in International Investment Arbitration’ (2016), 57 th Annual Convention of the International Studies Association, available at scholar.harvard.edu/files/astrezhnev/files/are_investment_arbitrators_biased.pdf.
72 Ibid., at 18.
73 Ibid.
74 See E. Benvenisti and G. Downs, ‘Prospects for the Increased Independence of International Tribunals’, (2011) 12 German Law Journal 1057.
75 S. Rosenne, The Law and Practice of the International Court (1965), at 168. (Rosenne likewise describes it as ‘a version of other provisions of the Charter concerning the principle of what is called ‘equitable geographical distribution’ as a guide to the composition of various other organs of the United Nations’).
76 See ICJ Statute, supra note 28, Art. 9.
77 The ICJ is composed of 15 judges, who originate from the following countries: Somalia, China, Slovakia, France, Morocco, Brazil, United States of America, Italy, Uganda, India, Jamaica, Australia, Russian Federation, Lebanon, Japan, and Belgium, available at www.icj-cij.org/en/current-members.
78 See ECHR, supra note 29, Art. 22.
79 Only Portugal, Lichtenstein, and United Kingdom have judges on the bench who are not their nationals, available at www.echr.coe.int/Pages/home.aspx?p=court/judges.
80 Both the ICJ and ECtHR allow appointment of ad hoc judges, where the normal rules of nationality do not apply. See ICJ Statute, supra note 28, Art. 31; 2020 European Court of Human Rights Rules of the Court, Rule 29.
81 See 2017 ICC Arbitration Rules, supra note 58 Art. 13(5). In a three-member tribunal the ICC rules allow the parties to choose an arbitrator of any nationality, but in confirming the appointment, the ICC Court shall consider arbitrator’s nationality. See also 2017 ICC Arbitration Rules, ibid., Art. 13(1).
82 See 2016 SIAC Rules, supra note 57, Art. 9.
83 ICC Statistics 2017, available at cdn.iccwbo.org/content/uploads/sites/3/2018/07/2017-icc-dispute-resolution-statistics.pdf, at 52, 57.
84 SIAC Annual Report 2018, available at www.siac.org.sg/images/stories/articles/annual_report/SIAC_AR2018-Complete-Web.pdf, at 16–18.
85 Statistics indicate that most arbitrators appointed in these institutions originate from the USA, the UK, Switzerland, and France. Though not all of these nationalities dominate among the most frequent users, these countries comprise one of the biggest shares of the parties in those institutions. ICC Statistics 2017, available at cdn.iccwbo.org/content/uploads/sites/3/2018/07/2017-icc-dispute-resolution-statistics.pdf, at 52, 57. SIAC Annual Report 2018, ibid., at 16–18.
86 See, e.g., ibid., (noting on arbitrator representation that ‘61.7% originated from Europe, 21.1% from South America, 10% from North America (United States and Canada), 12.6% from Asia and Australia and 3.6% from Africa. New nationalities represented in 2019 originated from Azerbaijan, Botswana, Haiti, Malawi, the Palestinian authority, St Kitts and Nevis’).
87 Ibid.
88 The sole arbitrator cannot have the nationality of either claimant or respondent, unless both parties agree. See ICSID Arbitration Rules, supra note 37, Ch. I, Rule 1(3).
89 ICSID Statistics 2019-1, available at icsid.worldbank.org/en/Documents/resources/ICSID%20Web%20Stats%202019-1(English).pdf.
90 See statements of representatives of Colombia, Indonesia, and Poland. A. Roberts, ‘UNCITRAL and ISDS Reforms: Concerns about Arbitral Appointments, Incentives and Legitimacy’, (2018) EJIL:Talk!, 6 June 2018, available at www.ejiltalk.org/uncitral-and-isds-reforms-concerns-about-arbitral-appointments-incentives-and-legitimacy/.
91 See K. Miles, The Origins of International Investment Law: Empire, Environment, and the Safeguarding of Capital (2013), at 23, 24.
92 UNCITRAL, Report of Working Group III (Investor-State Dispute Settlement Reform) on the work of its thirty-fifth session, Doc. A/CN.9/935, 8-14 (2018), para. 70, available at undocs.org/en/A/CN.9/935.
93 Members of the Panels of Conciliators and of Arbitrators, available at icsid.worldbank.org/about/arbitrators-conciliators/database-of-icsid-panels.
94 See ICSID Statistics 2019-1, at 17, available at icsid.worldbank.org/sites/default/files/publications/The%20ICSID%20Caseload%20Statistics%20%282021-1%20Edition%29%20ENG.pdf.
95 See ICJ Statute, supra note 28, Art. 26.
96 See ibid., Art. 53(2).
97 See ECHR, supra note 29, Art. 44(3); see also ECHR Rules of the Court, supra note 80, Rule 78, available at hudoc.echr.coe.int/eng-press.
98 C. Partasides and S. Maynard, ‘Raising the Curtain on English Arbitration’, (2017) 33(2) Arbitration International 197.
99 See ICSID Convention, supra note 37, Art. 48; Administrative and Financial Regulations, Regulation 22.
100 UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration define each of these criteria in the scale of transparency. 2014 UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration (2014) (UNCITRAL Rules on Transparency), available at uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/rules-on-transparency-e.pdf.
101 See ICSID Arbitration Rules, supra note 37, Rule 48(4).
102 The ICSID’s case database is available at icsid.worldbank.org/en/Pages/cases/AdvancedSearch.aspx.
103 2017 United Nations Convention on Transparency in Treaty-based Investor-State Arbitration (Mauritius Convention on Transparency), available at uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/transparency-convention-e.pdf.
104 E. Moneke, ‘The Quest for Transparency in Investor-State Arbitration: Are the Transparency Rules and the Mauritius Convention Effective Instruments of Reform?’, (2020) 86(2) International Journal of Arbitration, Mediation and Dispute Management 157, at 180–1. L. Trakman and D. Musaleyan, ‘The Repudiation of Investor-State Arbitration and Subsequent Treaty Practice: The Resurgence of Qualified Investor-State Arbitration’, (2015) 31(1) ISCID Law Review 194, at 215–16; S. Allison and K. Dharmananda, ‘Incorporating Arbitration Clauses: The Sacrifice of Consistency at the Alter of Experience’, (2014) 30(2) Arbitration International 265, at 278.
105 For example, a revision to Arbitration Rule 48(4) concerned the publication of information about awards and permitted the Secretariat to publish excerpts of the legal rules applied by tribunals. ICSID, A Brief History of Amendment to the ICSID Rules and Regulations, 10 March 2020, available at icsid.worldbank.org/news-and-events/speeches-articles/brief-history-amendment-icsid-rules-and-regulations; see also Mauritius Convention on Transparency, supra note 102; UNCITRAL Rules on Transparency in Treaty-based investor-State Arbitration, supra note 103.
106 See, e.g., World Justice Project, World Justice Project Rule of Law Index, 2017–2018 (2018), available at worldjusticeproject.org/sites/default/files/documents/WJP-ROLI-2018-June-Online-Edition_0.pdf; UNCITRAL Working Group III (Investor-State Dispute Settlement Reform, Possible Reform of Investor-State Dispute Settlement (ISDS) - Cost and Duration, A/CN.9/WG.III/WP.153, available at undocs.org/en/A/CN.9/WG.III/WP.153.
107 ICJ cases from the period of 2013 to 2018, available at www.icj-cij.org/en/decisions.
108 ICSID cases from the period of 2013 to 2017, available at icsid.worldbank.org/en/Pages/cases/AdvancedSearch.aspx. This is also consistent with larger datasets such as PluriCourt’s Investment Treaty Arbitration Database, which contains over 600 investor-state cases, available at pitad.org/.
109 ECHR cases from the period of 2018 to 2019, available at hudoc.echr.coe.int/; Kryvoi, supra note 18.
110 SIAC’s Costs and Duration Study released in October 2016 (on file with the author). Study is based on actual cases filed with SIAC under SIAC Arbitration Rules (2013). According to the same study, the median duration at other major arbitration institutions is similar: 14.3 months at the Hong Kong International Arbitration Centre (HKIAC), 16 months at the London Court of International Arbitration (LCIA), and 13.5 months at the Arbitration Institute of the Stockholm Chamber of Commerce (SCC).
111 1998 ICC Arbitration Rules, Art. 24. Furthermore, to induce compliance with this provision the ICC International Court of Arbitration introduced a policy of cost consequences for arbitrators for unjustified delays in submitting awards. Under the policy, tribunals should submit a draft award for internal review by the ICC within three months of the close of proceedings (two months for sole arbitrators). Should tribunals go outside of this time limit without proper justification, the ICC may lower the arbitrators’ fees. See ‘ICC Court announces new policies to foster transparency and ensure greater efficiency’, 8 January 2016, available at iccwbo.org/media-wall/news-speeches/icc-court-announces-new-policies-to-foster-transparency-and-ensure-greater-efficiency/.
112 K. Dzehtsiarou and A. Greene, ‘Legitimacy and the Future of the European Court of Human Rights: Critical Perspectives from Academia and Practitioners’, (2011) 12(1) German Law Journal 1707 (‘The delay caused due to its inability to handle the ever-increasing wave of applications also negatively affects the legitimacy of the ECtHR’).
113 E. Brabendere, Investment treaty Arbitration as Public International Law: Procedural Aspects and Implications (2014), at 89.
114 G. A. Alvarez and W. M. Reisman, ‘How Well Are Investment Awards Reasoned?’, in G. A. Alvarez and W. M. Reisman, The Reasons Requirement in International Investment Arbitration: Critical Case Studies (2008), at 91–2.
115 G. Kaufmann-Kohler, ‘Arbitral Precedent: Dream, Necessity or Excuse?’, (2007) 23(3) Arbitration International 357, at 375.
116 Ibid.
117 B. Vasani and S. Palmer, ‘Challenge and Disqualification of Arbitrators at ICSID: A New Dawn?’, (2014) 30 ICSID Review – Foreign Investment Law Journal 194.
118 UNCITRAL Working Group III, supra note 106, para. 91.
119 2013 ICJ, Handbook of the Court, available at www.icj-cij.org/public/files/publications/handbook-of-the-court-en.pdf, at 31–2; www.echr.coe.int/Documents/Questions_Answers_ENG.pdf, at 9.
120 See ICJ Statute, supra note 28, Art. 64; ICJ Annual Report 2017–2018, available at www.icj-cij.org/public/files/annual-reports/2017-2018-en.pdf; 2013 ICJ, Handbook of the Court supra note 119, at 31–2; ECtHR budget, available at www.echr.coe.int/Documents/Budget_ENG.pdf. For, example, the ICJ allocates approximately $479,487 per judge annually. See ICJ Annual Report 2017–2018, ibid.
121 In the ICJ, states may, on a voluntary basis, designate additional sums to the UN Secretary-General’s Trust Fund, which covers expenses incurred in connection with the submission disputes to the ICJ and the costs of implementing judgments. The fund operates on the basis of voluntary contributions. More information about the fund is available at www.un.org/law/trustfund/trustfund.htm; the ECtHR may also provide legal aid to applicants. See ECtHR Rules of the Court, Ch. XII, Rule 105.
122 The ICJ serves as a principal judicial organ of the United Nations and is authorized to give binding judgments in any legal dispute concerning the questions of international law. The ECtHR ensures the observance of the engagements undertaken by states in the ECHR. See ICJ Statute, supra note 28, Art. 1; ECHR, supra note 29, Art. 19. See also Case Concerning Legality of Use of Force (Yugoslavia v. Spain), Provisional Measures, Order of 2 June 1999, [1999] ICJ Rep. 761, available at www.icj-cij.org/en/case/112; Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia And Herzegovina v. Serbia And Montenegro), Merits, Judgment of 26 February 2007 [2007] ICJ Rep. 43, available at www.icj-cij.org/en/case/91; Case Concerning Territorial and Maritime Dispute (Nicaragua v. Colombia), Merits, Judgment of 19 November 2012 [2012] ICJ Rep. 624, available at www.icj-cij.org/en/case/124.
123 2017 ICC Arbitration and Mediation Rules, Art. 21; 2016 SIAC Rules, supra note 57, Art. 31.
124 ICSID Schedule of Fees, available at icsid.worldbank.org/services/content/schedule-fees; 2017 ICC Arbitration and Mediation rules, Arts. 37, 38; SIAC Schedule of Fees, available at www.siac.org.sg/68-estimate-your-fees/360-siac-schedule-of-fees-1-august-2014. Unlike public institutions, ICSID, ICC, and SIAC charge additional fees for services that allow the parties to resolve their disputes with maximum efficiency. For example, the ICC and SIAC provide the possibility of expedited proceedings and emergency arbitrators, which are charged additionally to the rest of the costs. ICSID offers special services, such as the Secretary-General acting as appointing authority, or a request for a supplementary decision or its interpretation. See 2016 SIAC Rules, supra note 57, Art. 5, Sch. 1; SIAC Schedule of Fees; see ICC Arbitration and Mediation Rules, supra note 123, Arts. 29–30; ICSID Administrative and Financial Regulation 16, available at icsidfiles.worldbank.org/icsid/icsid/staticfiles/basicdoc/partc-chap03.htm#r16.
125 When allocating costs, tribunals most frequently apply the presumption that the unsuccessful party will bear the costs of the arbitration. See J. Y. Gotanda, ‘Awarding Costs and Attorneys’ Fees in International Commercial Arbitrations’, (1999) 21 Michigan Journal of International Law 1.
126 2017 ICSID Annual Report, at 73, available at icsid.worldbank.org/sites/default/files/publications/annual-report/en/2017_ICSID_AnnualReport_English_LowRes.pdf.
127 Ibid.
128 According to the ICSID Schedule of Fees, a non-refundable fee of US$25,000 fee is paid to lodge an arbitration request, adjudicators are entitled to receive US$3,000 per day of meetings or other work performed in connection with the proceedings, as well as subsistence allowances and reimbursement of travel expenses. In addition, an administrative charge of US$42,000 is levied upon the registration of a request for arbitration, conciliation or post award proceeding, and annually thereafter. See 2020 ICSID Schedule of Fees, available at icsid.worldbank.org/services/content/schedule-fees.
129 One study shows that in 2017 the costs awarded to claimants reached $110 million and this amount increases annually. See M. Hodgson and A. Campbell, ‘Damages and costs in investment treaty arbitration revisited’, (2017) Global Arbitration Review, available at globalarbitrationreview.com/damages-and-costs-in-investment-treaty-arbitration-revisited.
130 South Africa and Italy argued that the high costs of ISDS makes it a system for powerful investors. See A. Roberts, ‘UNCITRAL and ISDS Reforms: Concerns about Costs, Transparency, Third Party Funding and Counterclaims’, EJIL:Talk!, 6 June 2018, available at www.ejiltalk.org/uncitral-and-isds-reforms-concerns-about-costs-transparency-third-party-funding-and-counterclaims/.
131 UNCITRAL Working Group III, supra note 106, paras. 8–9.
132 W. J. Jones, ‘Expropriation in Roman Law’, (1929) 45 Law Quarterly Review 512, at 517.
133 Frontinus, De Anuis Urbis Romae (1923), at 128.
134 Smith, supra note 7.
135 See ICJ Statute, supra note 28, Art. 38(1).
136 K. Dzehtsiarou, ‘What Is Law for the European Court of Human Rights’, (2017) 49 Georgetown Journal of International Law 89; D. Shelton, ‘The Boundaries of Human Rights Jurisdiction in Europe’, (2003) 13 Duke Journal of Comparative & International Law 95, at 129.
137 G. Guillaume, ‘The Use of Precedent by International Judges and Arbitrators’, (2011) 2(1) Journal of International Dispute Settlement 5. (‘the Court refers to itself frequently to ensure “consistency of jurisprudence”. It sometimes does this by simply insisting on its “settled jurisprudence” (jurisprudence constante) and sometimes by mentioning judgments previously rendered’).
138 See ECtHR Rules of Court, supra note 80, Art. 42(1).
139 Report of the Executive Directors of the International Bank for Reconstruction and Development on the Convention on the Settlement of Investment Disputes between States and Nationals of Other State, ICSID, 15 April 2006, at 35, available at https://icsid.worldbank.org/sites/default/files/ICSID%20Convention%20English.pdf.
140 See 2017 ICC Arbitration Rules, supra note 58, Art. 21(1); see also 2016 SIAC Rules, supra note 57, Art. 28(1).
141 See 2017 ICC Arbitration Rules, ibid., Art. 21(2).
142 The most frequent choices for ICC arbitrations were the laws of England, the US, France, and Switzerland. See International Chamber of Commerce, ICC Dispute Resolution Bulletin 61(2), 2018.
143 See, e.g., F. Ortino, ‘Refining the Content and Role of Investment ‘Rules’ and ‘Standards’: a New Approach to International Investment Treaty Making’, (2013) 28(1) ICSID Review 152.
144 T. Franck, ‘The Power of Legitimacy and the Legitimacy of Power: International Law in an Age of Power Disequilibrium’, (2006) 100 American Journal of International Law 88, at 100.
145 R. von Jhering, Der Geist des Romischen Rechts (1883), at 51–6.
146 S. Djankov et. al., ‘The New Comparative Economics’, (2003) 31 Journal of Comparative Economics 15.
147 D. Kennedy, Form and Substance of Private Adjudication (1976), at 1688.
148 See J. Arato, ‘The Private Law Critique of International Investment Law’, (2019) 113 American Journal of International Law 1, at 16–29.
149 W. Landes and R. Posner, ‘Adjudication as a Private Good’, NBER Working Paper Series, Working Paper No. 263. 22, 1978, available at doi.org/10.1086/467609 (‘arbitration is generally limited to disputes where the rules are perfectly clear, and the only issue is their application to the facts’).
150 See, e.g, UNCITRAL Working Group III (Investor-State Dispute Settlement Reform), Possible Reform of Investor-State Dispute Settlement (ISDS): Consistency and Related Matters, A/CN.9/WG.III/WP.150 (2018), available at undocs.org/Home/Mobile?FinalSymbol=A%2FCN.9%2F935.
151 See, e.g., UNCITRAL Working Group III (Investor-State Dispute Settlement Reform), Report of Working Group III (Investor-State Dispute Settlement Reform) on the work of its thirty-fifth session, Doc. A/CN.9/935 (2018), at 8–14, available at undocs.org/pdf?symbol=en/A/CN.9/935; for further reflections on these concerns see also UNCITRAL Working Group III (Investor-State Dispute Settlement Reform), Secretariat Note on Possible Reform of Investor-State Dispute Settlement (ISDS): Arbitrators and decision makers: appointment mechanisms and related issues, UN Doc. A/CN.9/WG.III/WP.52 (2018), at 5–10, available at undocs.org/Home/Mobile?FinalSymbol=A%2FCN.9%2FWG.III%2FWP.152.
152 UNCITRAL Working Group III (Investor-State Dispute Settlement Reform), ibid. For a brief analysis of inconsistency in the adjudication of investor-state disputes with a number of illustrations from case law see I. M. Ten Cate, ‘The Costs of Consistency: Precedent in Investment Treaty Arbitration’, (2013) 51 Columbia Journal of Transnational Law 418, at 424–35.
153 Compare Ronald S. Lauder v. The Czech Republic, UNCITRAL Case, Final Award of 3 September 2001, with CME Czech Republic B.V. (The Netherlands) v. The Czech Republic, UNCITRAL Case, Final Award of 14 March 2003.
154 S. D. Franck, ‘The Legitimacy Crisis in Investment Treaty Arbitration: Privatizing Public International Law Through Inconsistent Decisions’, (2005) 73(4) Fordham Law Review 1521, at 1558.
155 See ICJ Statute, supra note 28, Art. 60.
156 Ibid., Art. 61.
157 Ibid., (unlike the ICJ, no special procedure for interpretation exists as the ECtHR tends to defer to the interpretation of domestic courts).
158 See ECHR, supra note 29, Arts. 43(2), 43(3).
159 See ICSID Convention, supra note 28, Art. 53(1).
160 Ibid., Art. 54(1).
161 Ibid., Art. 51.
162 Ibid., Art. 52.
163 Art. 34 of the UNCITRAL Model Law on International Commercial Arbitration, has been widely adopted as a model by many states, provide for a number of specific grounds based on which the domestic courts in the seat of arbitration may set aside an arbitral award. See 1985 UNCITRAL Model Law on International Commercial Arbitration, available at uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/06-54671_ebook.pdf.
164 See New York Convention, supra note 43, Art. V.
165 Legislation based on the UNCITRAL Model Law has been adopted in 80 States in 111 jurisdictions. See UNCITRAL, supra note 163.
166 See New York Convention, supra note 43.
167 See 2017 ICC Arbitration Rules, supra note 58, Art. 34.
168 See, e.g., 1969 Vienna Convention on the Law of International Treaties, Art. 27 (‘A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty’); International Law Commission Articles on State Responsibility, Art. 3 (‘The characterization of an act of a State as internationally wrongful is governed by international law. Such characterization is not affected by the characterization’).
169 This definition is inspired by T. Franck, ‘The Power of Legitimacy and the Legitimacy of Power: International Law in an Age of Power Disequilibrium’, (2006) 100(1) American Journal of International Law 88, at 100.
170 See, e.g., review of concerns raised by states at UNCITRAL. See A Roberts and Z Bouraoui, ‘UNCITRAL and ISDS Reforms: Concerns about Consistency, Predictability and Correctness’, EJIL:Talk!, 5 June 2018, available at www.ejiltalk.org/uncitral-and-isds-reforms-concerns-about-consistency-predictability-and-correctness/.
171 C. Abram, ‘The role of the judge in public law litigation’, (1975) 89 Harvard Law Review 1281, at 632 (‘… enforcement and application of law is necessarily implementation of regulatory policy. Litigation inevitably becomes an explicitly political forum and the court a visible arm of the political process’).
172 See, e.g., World Justice Project, World Justice Project Rule of Law Index, 2017–2018 (2018), available at worldjusticeproject.org/sites/default/files/documents/WJP-ROLI-2018-June-Online-Edition_0.pdf.
173 Abram, supra note 171, at 643 (‘judicial action can be understood to rest on a delegation from the people’s representatives’); Marckx v. Belgium, Judgment of 13 June 1979, ECHR (No. 6833/74), at paras. 58, 92 (‘[t]he national authorities have direct democratic legitimation and are … in principle better placed than an international court to evaluate local needs and conditions’).
174 See C. Giorgetti, ‘Who decides who decides in international investment arbitration?’, (2014) 35 University of Pennsylvania Journal of International Law 431.
175 D. Sarooshi, ‘The Future of the WTO and its Dispute Settlement System’, (2005) 2(1) International Organizations Law Review 132. (Practice under the current system has only seen approximately 35 per cent of the panelists having served since 1995 come from a DCM [Developing Country Member], and there is no reason to suppose that this type of figure would in practice increase unless there was an express stipulation in a new DSU provision).
176 1994 WTO Dispute Settlement Understanding (WTO DSU), Art. 4(10).
177 See ibid., Art. 8(10).
178 Some private institutions already made steps in this direction. For ICC awards made as from 1 January 2019, publication of awards and other information about the proceedings will become a default rule, ‘[i]increasing the information available to parties, the business community at large and academia is key in ensuring that arbitration remains a trusted tool to facilitate trade’ ICC, Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration (2019), paras. 34–46, available at cdn.iccwbo.org/content/uploads/sites/3/2017/03/icc-note-to-parties-and-arbitral-tribunals-on-the-conduct-of-arbitration.pdf; according to the 2017 SIAC Investment Arbitration Rules, Art. 38 the institution may publish limited information on proceedings conducted under the Rules, when the parties agree to apply them.
179 Another approach is to establish a special advisory centre similar to the Advisory Centre on WTO Law (ACWL), which is an international organization established ‘to provide developing countries and LDCs with the legal capacity necessary to enable them to take full advantage of the opportunities offered by the WTO’, ‘The ACWL’s Mission’, available at www.acwl.ch/acwl-mission. See also J. Sharpe, ‘An International Investment Advisory Center: Beyond the WTO Model’, EJIL:Talk!, 26 July 2019, available at www.ejiltalk.org/an-international-investment-advisory-center-beyond-the-wto-model/.
180 See, e.g., Lord Bingham, ‘The Rule of Law’, (2007) 66 Cambridge Law Journal, at 72.
181 See, e.g., O. Holmes, ‘The Path of the Law’, (1897) 10 Harvard Law Review 457, at 457–8.
182 S. Schill, ‘System-Building in Investment Treaty Arbitration and Lawmaking’, (2011) 5 German Law Journal 12, at 1083–110.
183 See Y. Kryvoi, ‘ICSID Arbitration Reform: Mapping Concerns of Users and How to Address Them’, 30 November 2018, SSRN, available at ssrn.com/abstract=3280782.
184 R. Wai, ‘Transnational Liftoff and Juridical Touchdown: The Regulatory Function of Private International Law in an Era of Globalization’, (2002) 40 Columbia Journal of Transnational Law 207, at 215–19.
185 G. Van Harten, ‘The Public—Private Distinction in the International Arbitration of Individual Claims against the State’, (2007) 56 International & Comparative Law Quarterly 371, at 393 (‘private contractors rather than tenured judges are left to manage the legal construction of the public sphere, without rigorous supervision by courts. The ultimate authority to determine what juridical sovereignty means is itself privatized’, ‘the rulings of arbitrators pursuant to investment treaties … involve governmental choices that are akin to the judicial determination of individual property and economic rights in domestic public law’).
186 Y. Kryvoi, ‘Three Dimensions of Inequality in International Investment Law’, 2 September 2020, British Institute of International and Comparative Law, available at www.biicl.org/documents/117_tackling-inequalities-international-investment_law.pdf.
187 For instance, the world’s business commercial arbitration institution is the China International Economic and Trade Arbitration Commission (CIETAC), which functions as a part of China Council for the Promotion of International Trade, a specialized state agency. See www.cietac.org/index.php?m=Page&a=index&id=34&l=en.
188 See a discussion of Yukos cases in various institutions, supra note 14.
189 See, e.g., ICC, supra note 178.
190 See Kryvoi, supra note 18.
191 See, e.g., Roberts and Bouraoui, supra note 170.
192 See, e.g., C. R. Drahozal, ‘Regulatory competition and the location of international arbitration proceedings’, (2004) 24 International Review of Law and Economics 371.