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The Measure of Finality: A Dialectical Analysis of Legitimacy Concerns in International Investment Arbitration

Mandelbaum, S; (2020) The Measure of Finality: A Dialectical Analysis of Legitimacy Concerns in International Investment Arbitration. UCL Journal of Law and Jurisprudence , 9 , Article 1. 10.14324/111.2052-1871.124. Green open access

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Abstract

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 in Ampal-American and Others v Egypt, paradigmatic instances of concurrent treaty arbitration proceedings.

Type: Article
Title: The Measure of Finality: A Dialectical Analysis of Legitimacy Concerns in International Investment Arbitration
Open access status: An open access version is available from UCL Discovery
DOI: 10.14324/111.2052-1871.124
Publisher version: https://doi.org/10.14324/111.2052-1871.124
Language: English
Additional information: © 2020, The Authors. This is an open access article distributed under the terms of the Creative Commons Attribution License (CC BY) 4.0 https://creativecommons.org/licenses/by/4.0/, which permits unrestricted use, distribution and reproduction in any medium, provided the original author and source are credited.
Keywords: International Investment Law, Max Weber, Finality
URI: https://discovery.ucl.ac.uk/id/eprint/10106930
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