Midtveisevaluering: Constitutionalizing International Investment Arbitration - towards structure and a BiT of balancing

Stipendiat Josefin Natalie Engström ved Nordisk institutt for sjørett presenterer onsdag 18. desember sitt doktorgradsprosjekt med arbeidstittelen "Midtveisevaluering: Constitutionalizing International Investment Arbitration - towards structure and a BiT of balancing".

Kommentator: Professor Freya Baetens, PluriCourts, Universitetet i Oslo.

Midtveisevalueringen ledes av professor Ola Mestad, Nordisk institutt for sjørett. Engströms veileder er professor Ivar Alvik, Nordisk institutt for sjørett.

For disposisjon og tekstutkast, kontakt Josefin Engström.

Constitutionalizing International Investment Arbitration - towards structure and a BiT of balancing

The project seeks to identify the contemporary review approaches applied by international investment tribunals, and to compare them to benchmarks of review in comparable adjudicative systems, both nationally and internationally. The project focus on the interpretation of indirect expropriation and fair and equitable treatment, which are the two most invoked, discussed and dynamically expanded treaty standards in international investment law. Today, strict contractual interpretations of alleged treaty breach are becoming less frequent, and investment tribunals are increasingly balancing states’ regulatory prerogatives against investment protection. The main purpose with this project is to identify what type of review investment tribunals apply, and to what benchmarks of judicial review they compare.


International investment law is a hybrid system of law; with features found it various legal paradigms, both private and public. The system allows individual foreign investors to bring claims for damages against host states before international arbitral tribunals. Currently, international investment arbitration is subject to much debate and extensive reform projects are initiated in order to improve system legitimacy, for example by strengthening structures and principles from public law adjudication. The project relates to the contemporary debates by assessing investment tribunals’ responsiveness when interpreting old generation treaties that have not been subject to reform. It will clarify to what extent tribunals are applying technics and principles from public law adjudication, such as proportionality analysis, balancing and various deferential technics. 


From an overall perspective, the project also intends to discuss recent developments in light of Constitutionalization. The theory is a recurring theme in the legal discourse, particularly in constitutional law, where national high courts review regulatory acts in light of their constitutionality. In its extreme form, to such an extent that every legislative or executive act may be challenged on the basis of constitutional rights, ultimately transferring decision-making power from the legislator to the judiciary. The concerns of constitutionalization become even greater when moving the review process abroad. When judicial review of national regulations is performed by international adjudicators it becomes more problematic, and yet even more so when the adjudicators are private arbitrators in a system lacking transparency, appellate review and formal precedent. When investment tribunals abandon contractual interpretative approaches of treaty breach for public law review, they increasingly need to assess national policy decisions, which thus raises questions on review intensity and the need for developing a margin of appreciation.

Publisert 18. nov. 2019 12:53 - Sist endret 18. nov. 2019 12:53