Kriton Dionysiou - CETAs Investment Chapter: A Rule of Law Perspective

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Despite a backlash against investment treaty arbitration from several states and the civil society, the European Union (EU) and Canada have recently concluded the Comprehensive Economic and Trade Agreement (CETA) whose investment chapter contains such a dispute settlement mechanism. According to EU and Canadian officials, CETAs Investment Chapter represents a decisive response to the legitimacy crisis facing investment treaty arbitration. Such a declaration, nevertheless, should not be treated as self-evidential. In light of the above, the monograph attempts to assess whether CETAs Investment Chapter constitutes a positive response to the legitimacy crisis facing investment treaty arbitration.

For this purpose, the study begins by tracing the historical roots of the legitimacy crisis facing investment arbitration and the tension between its private foundations and the public law nature of these investment disputes. This historical analysis leads to the realization that the legitimacy crisis reflects fundamentally a Rule of Law crisis within investment treaty arbitration. Subsequently, the monograph proceeds with a theoretical exploration of the Rule of Law in the third chapter. In that chapter, it will be argued that the Rule of Law incorporates the idea that public authority should be accountable to an independent, transparent, and accessible judicial body that fundamentally aims to guard a number of goals, paramount of these goals are human rights principles and legal certainty. The third chapter concludes that the Rule of Law is not only the principal normative and causal assumption on which legitimacy concerns are based, but it could and should be utilized as a platform for future reforms.

Chapters then use the Rule of Law as a normative framework to analyze CETAs Investment Chapter to assess its impact on the legitimacy crisis. Eventually concluding that CETAs Investment Chapter is unlikely to completely solve the legitimacy crisis simply because it is just a patchwork of reforms rather than a comprehensive reinvention of the substantive and procedural aspects of investment treaty arbitration. Finally, the monograph draws meaningful insights about the way the challenges presented by investment treaty arbitration should be addressed by scrutinizing CETAs Investment Chapter from a Rule of Law perspective.

Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce (2017).

Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (1992).

Chinese Model BIT (2003).

Council Negotiating Directives (Canada, India, and Singapore) (2011).

Council of the European Union, Negotiating Directives for a Convention Establishing a Multilateral Court for the Settlement of Investment Disputes (2018).

Drago-Porter Convention (1907).

Energy Charter Treaty (1991).

EU-Canada Comprehensive Economic and Trade Agreement (2016).

European Convention on Human Rights (1953).