Rule of Law Issues in International Investment Disputes and Proposals for Multilateral Appellate Review

: Challenges and Opportunities for UNCITRAL

Abstract

This thesis will evaluate investor-State dispute settlement (ISDS) and proposals for multilateral appellate review from an international rule of law (IRoL) and domestic rule of law (DRoL) perspective. Many problems have been identified in international investment law (IIL), but this thesis will focus on problems inherent in ISDS. These issues relate to matters such as access to justice, fairness, arbitrariness, transparency, appellate review, equality, State sovereignty, correctness, predictability, independence, impartiality, legal order, human rights, and sustainability. The content of an IRoL is contentious, but it will be argued that its defining characteristics can be linked to all these formal and substantive issues. Although the content of the DRoL is contested, it has been endorsed numerous times domestically and internationally in both primary and secondary sources, yet the concept of an IRoL and its implications for the IIL system needs deeper examination. This thesis will examine the potential content of an IRoL considering its relationship with the DRoL, and the role of State and non-State actors, to articulate an IRoL definition. Furthermore, it will investigate the extent to which existing ISDS structures reinforce or undermine an IRoL and the DRoL, with a focus on ISDS in the context of the United Nations Commission on International Trade Law (UNCITRAL). While it is not the primary site for ISDS, the focus on UNCITRAL, and in particular Working Group III, offers a point of reflection for proposed responses to some of the challenges facing IIL and principally ISDS reform. Arguably, UNCITRAL exposes problems and offers solutions attentive to the theoretical foundations of the thesis. This analysis will be used to explore the case for creating multilateral appellate review to address some of the existing problems in ISDS. In this context, the thesis will focus on what analysis of UNCITRAL policy making offers to this discussion regarding ISDS, the RoL, and the potential for multilateral appellate review.

Date of Award	6 Dec 2022
Original language	English
Awarding Institution	University of Bristol
Supervisor	Tonia A Novitz (Supervisor) & Clair Gammage (Supervisor)