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

Mandelbaum, Stefan (2020) The measure of finality: a dialectical analysis of legitimacy concerns in international investment arbitration. UCL Journal of Law and Jurisprudence, 9 (1). ISSN 2052-1871

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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.

Item Type: Journal Article
Keywords: Investment Treaty Arbitration, Dialectical Analysis, Legitimacy, International Legal Thought, Investor-State Arbitration, International Law
Faculty: Faculty of Business & Law
Depositing User: Dr Stefan Mandelbaum
Date Deposited: 09 Jun 2020 09:23
Last Modified: 09 Sep 2021 18:52

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