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International Investment Law and Comparative Public Law$
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Stephan W. Schill

Print publication date: 2010

Print ISBN-13: 9780199589104

Published to Oxford Scholarship Online: January 2011

DOI: 10.1093/acprof:oso/9780199589104.001.0001

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Procedure in Investment Treaty Arbitration and the Relevance of Comparative Public Law

Procedure in Investment Treaty Arbitration and the Relevance of Comparative Public Law

(p.659) 21 Procedure in Investment Treaty Arbitration and the Relevance of Comparative Public Law
International Investment Law and Comparative Public Law

Chester Brown

Oxford University Press

This chapter deals with the applicable procedure in investment treaty arbitration. It notes that although investment treaty arbitration has a public law character, the applicable procedure typically follows the model of international commercial arbitration. With this in mind, the chapter considers whether some features of the procedure that is applied in domestic public law litigation — in particular, in judicial review proceedings before domestic courts — might be relevant and applicable to investment treaty arbitration, so that it might better reflect its public law function. It then reviews the applicable procedure in such proceedings in the United Kingdom, Australia, the United States, Germany, and France, and suggests that the following aspects of procedure are worthy of consideration by investment treaty tribunals: the evidence-gathering powers of domestic tribunals, aspects of the inquisitorial process, the regime for access to the courts for non-disputing parties, and the diverse range of available remedies.

Keywords:   procedure, sources of law, judicial review, comparative public law, evidence, inquisitorial process, adversarial process, non-disputing party participation, remedies, investment treaty arbitration

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