ESIL Interest Group History of International Law

ESIL Interest Group History of International Law

donderdag 5 juli 2018

ARTICLE: Nineteenth Century Arbitrators’ Powers—Has There Been Any Progress to Date? The Law & Practice of International Courts and Tribunals XVII (2018), Nr. 1, 217-235

(image source: Brill)

Investment arbitrators’ authority has been a focus of attention today, e.g. regarding the extent of their powers to interpret and apply the law, to conduct arbitral proceedings, to dissent from their fellow co-arbitrators, and with regard to their duty to be impartial and independent. Two hundred years ago, practitioners, arbitrators and states confronted similar challenges, and through legal doctrines, treaties and practices a path was laid out for future generations of practitioners and arbitrators, where clear legal lines were drawn to distinguish between arbitrators’ procedural and substantive powers and their duties with regard to each of them. The consent and sovereignty of states were duly deferred to by arbitrators and umpires, limiting their job to settle a case. Thus, arbitrators had the duty of impartially interpreting and applying the law of nations, i.e. the natural law, and to deliver a final and binding award. Arbitrators were not bound by precedents, and if they made an unjust or unfair decision, beyond the law, countries could refrain from complying with it, which limited arbitrators’ interpretive powers. In conclusion, not much has changed to date with regard to the procedural powers given to arbitrators. The authority delegated to them by states was to strictly settle the case; no power to develop the law was ever given, which still applies now. Hence, the only important change that has been introduced today is that of claiming the so-called inherent power to help in the development of investment law, which is being driven mainly by arbitrators, and not by states.
On the author:
 Professor of International Economic Law, Externado University of Colombia. Sole practitioner in trade and investment areas involving local regulation
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