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Sovereign Choices and Sovereign ConstraintsJudicial Restraint in Investment Treaty Arbitration$
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Gus Van Harten

Print publication date: 2013

Print ISBN-13: 9780199678648

Published to Oxford Scholarship Online: January 2014

DOI: 10.1093/acprof:oso/9780199678648.001.0001

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Restraint Based on Relative Accountability

Restraint Based on Relative Accountability

(p.49) 3 Restraint Based on Relative Accountability
Sovereign Choices and Sovereign Constraints

Gus Van Harten

Oxford University Press

This chapter examines whether and how investment arbitrators show restraint in the review of legislative measures. The arbitrators’ reasons were reviewed for evidence of terms and concepts associated with restraint in the review of legislatures and other elected actors. In particular, awards were assessed for whether the arbitrators distinguished legislative from other state measures; whether they adopted deferential, balancing, or abstentionist approaches; and whether they invoked doctrines associated with judicial respect for democratic choice. This was supplemented by a review of other investor-state arbitration materials. The study showed little evidence of accommodation of legislative decision-making in investment treaty arbitration. The arbitrators did not discuss accountability as a reason for restraint in any of the cases reviewed.

Keywords:   investment treaty arbitration, international adjudication, arbitrators, accountability

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