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Shifting Paradigms in International Investment LawMore Balanced, Less Isolated, Increasingly Diversified$
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Steffen Hindelang and Markus Krajewski

Print publication date: 2016

Print ISBN-13: 9780198738428

Published to Oxford Scholarship Online: April 2016

DOI: 10.1093/acprof:oso/9780198738428.001.0001

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The European Commission and UNCTAD Reform Agendas

The European Commission and UNCTAD Reform Agendas

Do They Ensure Independence, Openness, and Fairness in Investor–State Arbitration?

(p.128) VI The European Commission and UNCTAD Reform Agendas
Shifting Paradigms in International Investment Law

Gus Van Harten

Oxford University Press

Recent approaches by the European Commission and UN Conference on Trade and Development to reform investor–State arbitration are reviewed in this chapter. The review focuses on often-neglected core issues of process and institutional structure in investment treaty arbitration: lack of institutional independence, lack of openness, and lack of procedural fairness. These concerns provide a framework for evaluating official reform agendas. They highlight whether the EC or UNCTAD acknowledges the concerns and, if so, whether their reform agendas respond. It is concluded that both reform agendas would make investment treaty arbitration more open albeit with important limitations (especially for UNCTAD). However, neither acknowledges and neither would address the lack of independence and fairness in the system. As a result, the reform agendas would expand and consolidate a system of international adjudication to review sovereign conduct and allocate public funds that is reasonably open but not judicially independent and procedurally fair.

Keywords:   Independence, openness, fairness, investor–State arbitration, reform, CETA, European Commission, UNCTAD

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