Paparinskis, M;
De Luca, A;
Feldman, M;
Titi, C;
(2020)
Responding to Incorrect ISDS Decision-Making: Policy Options.
Journal of World Investment and Trade
, 21
(2-3)
pp. 374-409.
10.1163/22119000-12340176.
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Abstract
Criticism of the quality of investor-State dispute settlement (ISDS) decision-making often focuses on inconsistency (comparing ISDS decisions), and less frequently, incorrectness (evaluating individual ISDS decisions on a standalone basis). This article situates incorrect ISDS decision-making within the broader context of public international law and develops potential policy responses, guided by three considerations. First, criticism of ISDS decision-making has been significant. Second, criticism of particular ISDS decisions, even when widespread and intense, does not necessarily establish their incorrectness. Finally, development of policy options should be informed by a broad understanding of ‘incorrectness’, to include instances of questionable legal analysis that cast doubt on the reliability of ISDS legal conclusions and outcomes; that approach can support not only the avoidance of incorrect ISDS decision-making in a strict sense, but also, more expansively, the achievement of correct ISDS decision-making, consisting of two core elements: correct identification and precise application of applicable law.
| Type: | Article |
|---|---|
| Title: | Responding to Incorrect ISDS Decision-Making: Policy Options |
| Open access status: | An open access version is available from UCL Discovery |
| DOI: | 10.1163/22119000-12340176 |
| Publisher version: | https://doi.org/10.1163/22119000-12340176 |
| Language: | English |
| Additional information: | This version is the author accepted manuscript. For information on re-use, please refer to the publisher’s terms and conditions. |
| Keywords: | applicable law; correctness; institutionalization; investor-State dispute settlement (ISDS); investment arbitration reform; review mechanisms; State practice; Vienna Convention on the Law of Treaties |
| UCL classification: | UCL UCL > Provost and Vice Provost Offices UCL > Provost and Vice Provost Offices > UCL SLASH UCL > Provost and Vice Provost Offices > UCL SLASH > Faculty of Laws |
| URI: | https://discovery.ucl.ac.uk/id/eprint/10085392 |
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