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The Judicial Function and Institutional Design of Investor-State Dispute Settlement Mechanisms

Zhang, Yanwen; (2024) The Judicial Function and Institutional Design of Investor-State Dispute Settlement Mechanisms. Doctoral thesis (Ph.D), UCL (University College London0).

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Abstract

The development of the investor-State dispute settlement (ISDS) mechanisms in recent decades is characterised by acceleration in both growth and contestation. The expansion of the ISDS system is reflected in the steady increase of investment treaties and investment arbitration cases in numerical terms. Alongside the stable structure of the current ISDS system is the trend of resistance that has contributed to the commencement of the ongoing intergovernmental negotiation in the United Nations Commission on International Trade Law (UNCITRAL) Working Group III on ISDS reform. Underlying the dual trends of growth and contestation is the persisting controversy surrounding the scope and performance of the judicial function of investment tribunals. Nevertheless, compared with other international courts and tribunals, investment tribunals have not received the attention that they deserve in the growing body of scholarship on international judicial function. This thesis fills this gap by identifying the conceptions of the judicial function of investment tribunals and analysing the stability and change of these conceptions based on the current legal and institutional structure of the ISDS system and within the context of the UNCITRAL reform as a case study. The main claim is two-fold. First, the narrow conception of the judicial function that has underpinned the creation and evolution of the current ISDS system overall focuses on the private function of dispute resolution, with the emerging public functions remaining contested in light of their tensions with the private function. Secondly, the institutional reform proposals in the UNCITRAL Working Group III reflect competing conceptions of the judicial function but are unlikely to fundamentally change the narrow conception of the judicial function within the current system. The key findings of the thesis provide a basis for further inquiries into the actors, forums, and analytical tools that will shape the future directions of the investment law reform.

Type: Thesis (Doctoral)
Qualification: Ph.D
Title: The Judicial Function and Institutional Design of Investor-State Dispute Settlement Mechanisms
Language: English
Additional information: Copyright © The Author 2024. Original content in this thesis is licensed under the terms of the Creative Commons Attribution-NonCommercial 4.0 International (CC BY-NC 4.0) Licence (https://creativecommons.org/licenses/by-nc/4.0/).
UCL classification: UCL
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/10192621
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