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The measure of finality: a dialectical analysis of legitimacy concerns in international investment arbitration

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journal contribution
posted on 2023-08-30, 17:21 authored by Stefan Mandelbaum
Over the last two decades, the institution of investment treaty arbitration has increasingly attracted a particular type of academic criticism. In challenging the overall coherence of an international adjudicative social practice, the spectre of a legitimacy crisis has successively established itself in the scholarly language-game orbiting investor-State dispute settlement. This article offers a structural explanation of legitimacy concerns by exploring the epistemic framework within which legitimacy issues materialise. On the basis of a dialectical analysis, it is argued that legitimacy challenges are intrinsically linked to evaluations of performances of arbitral reasoning, in particular, and to the epistemic condition of the doctrine of finality in general. Procedural autonomy (contract) and the latent dependency of proceedings on State authorities (adjudication) will be conceptualised as the two defining moments underlying the doctrine of finality. The article concludes by applying the developed analytical template of finality as a measure of legitimacy in order to review the legal reasoning in the two cases of Lauder/CME v The Czech Republic as well as Ampal-American and Others v Egypt, two paradigmatic instances of concurrent treaty arbitration proceedings.

History

Refereed

  • Yes

Volume

9

Issue number

1

Page range

0

Publication title

UCL Journal of Law and Jurisprudence

ISSN

2052-1871

Publisher

University College London

File version

  • Accepted version

Language

  • eng

Legacy posted date

2020-06-09

Legacy creation date

2020-06-08

Legacy Faculty/School/Department

Faculty of Business & Law

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