Nature and Powers of Arbitrators in the New Generation of International Investment Agreements: An Exploratory Research Agenda
| Autor | Belen Olmos Giupponi |
| Páginas | 255-277 |
255255
CAPÍTULO 11
Nature and Powers of Arbitrators
in the New Generation of International
Investment Agreements:
An Exploratory Research Agenda
Belen OLMOS GIUPPONI*
* Senior Lecturer in EU and International Law, Liverpool Hope University, Reino
Unido. E-mail: belen_olmos_giupponi@biari.brown.edu.
1. INTRODUCTION
e chapter’s main objective is to enquire into the nature of the ar-
bitrators’ powers under dierent international investment agreements
(IIAs), namely, those agreements known as mega-regionals: the Transat-
lantic Trade and Investment Partnership (TTIP), the EU-Canada Com-
cic Partnership (TPP). ese IIAs foresee various powers of arbitrators
embodying dierent investment dispute settlement models. Although the
ICSID model has represented so far the preferred system to settle Inves-
tor-to-State disputes, it has attracted several criticisms that highlight the
need for reform. In parallel, within the mega regionals dierent alternative
proposals for the settlement of Investor-to-State disputes have been put
forward. Specically, the chapter aims to enquire about arbitrators’ powers
within the Investor-state dispute settlement (ISDS).
256 LA POLÍTICA DE LA UNIÓN EUROPEA EN MATERIA DE DERECHO DE LAS INVERSIONES INTERNACIONALES
BELEN OLMOS GIUPPONI
Certainly, one of the main questions at issue concerns the nature of
the arbitrators’ powers across these dierent IIAs. Even though it has been
asserted that the nature and origin of the arbitrator’s powers come from the
commercial law model, IIAs and the practice of investment arbitration has
clearly demonstrated that a new model has emerged. As Jose Alvarez right-
ly points out the role of investment arbitrators could be better described as
hybrid, going beyond the public or private nature of arbitrators’ powers.1 In
the same vein, Kulick has underlined that the role of investment arbitrators
has become even more relevant in the face of public interest litigation.2
As for the nature of investment arbitrators, there is the pre-con-
ceived idea that much leeway has been allocated to arbitrators under in-
ternational investment law. Recent cases have fostered this long-held
idea. But, where to draw the distinction between myth and reality? e
adoption of investment agreements has revealed dierent powers of arbi-
trators and led to dierent models. With regard to the scope and content
of the powers, there is the question of the reliance on international and
domestic legislation. Amongst other contentious aspects, one can men-
tion issues such as the nomination of the arbitrators and the ethics rules
they must follow. Furthermore, the hybrid nature of the arbitrators’ pow-
ers between public and private law has created some confusions as to the
role they need to play in the context of the respective international in-
vestment agreement. e challenge of the arbitrators’ nomination reveals
another controversial question.
In the denition of the scope and extension of the arbitrators’ man-
date there is the question of the interaction with other dispute settlement
mechanisms such as the one designed to settle disputes in environmen-
tal matters. Conicts between dierent interests at stake may arise. is
is mainly because the arbitrators’ main task remains that of guaranteeing
consistency with the investment chapter. In other words, when interpret-
1 J E Alvarez, «Is Investor-State Arbitration ‘Public’?», 7 (3) J Int Disp Settlement
(2016), 534-576, at 535.
2 A Kulick, Global Public Interest in International Investment Law (CUP 2014) 276.
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