Alternative dispute resolution (ADR) is constantly gaining ground, both at domestic and international level. New forms of dispute settlement with a mix of public and private components are emerging in fields where this was not the case until recent times, as some contributions to this Zoom-out have attempted to demonstrate. In the field of investment law we have witnessed a somehow opposite trend. Traditionally, disputes in this field have been settled by means of arbitral tribunals established mostly on the basis of bilateral or multilateral investment agreements (IAs) under a variety of arbitration facilities, which are collectively referred to as investor-to-State dispute settlement (ISDS). Traditional ISDS presents many characteristics of ADR, starting from the strong role that private parties play in it (for example when it comes to the appointment of arbitrators). The practice has shown that the system has clear advantages but also undeniable disadvantages. The prevailing opinion in recent years has been that the latter considerably outweigh the former, resulting in what has been termed the backlash against investment arbitration in a volume appeared a few years ago. In this contribution, how-ever, I will not dwell on the details of the crisis that has affected investment arbitration, nor will I engage in a discussion of whether that backlash is entirely justified. My focus will be much more modest. One of the most tangible consequences of this growing dissatisfaction towards investment arbitration is the launch on the part of the EU of a court-like system to settle investment disputes –the now famous investment court system (ICS) –as a replacement to old-fashioned ISDS. The ICS now features in all EU IAs, and has become the standard position of the EU when it comes to dispute settlement in this field. Recently, the ICS has also received the green light of the European Court of Justice (ECJ),raising doubts as to whether traditional ISDS has conclusively been sent to oblivion, at least in the EU. From a political and policy perspective, it is undoubtful that there is a strong stance on the part of the EU and of its Member States against traditional ISDS. This article, however, will focus exclusively on the legal dimension, by examining whether the ECJ’s decision should be read as meaning that investment arbitration is incompatible with the EU legal system. While itis clear that Opinion 1/17 means that the ICS is compatible with EU law, it remains to be seen whether the Court’s finding allows an a contrario reading. Namely, whether it entails the incompatibility with EU law of traditional ISDS. The analysis will start with a brief summary of the events and developments that preceded the creation of the ICS and eventually led to the current situation (Section 2), followed by an examination of the relevant parts of Opinion 1/17 (Section 3). This part will be followed by an appraisal of the possible legal implications of the decision (Section 4). Some conclusions will be offered in the closing section (Section 5) in the attempt to look beyond the boundaries of EU law. Part of topic "The blurring distinction between public and private in international dispute resolution"
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The main hypothesis underlying this article is that although arbitrators are not formally part of national justice systems, they have dealt with questions of EU fundamental rights and the European rule of law standards for quite some time, at least formally since the landmark CJEU judgment in Eco Swiss in 1999. In fact, in all forms of arbitration, be it national or international, taking place in or across (Member) States daily and not necessarily concerning the application by arbitrators of EU law stricto sensu, arbitrators can be seen as guardians of many crucial procedural guarantees that increase parties’ access to justice and advance the European rule of law, or so we wish to argue. This article is an exploratory piece. That is, it combines the format of the state-of-the-art review with the format of conference proceedings through which we present the main activities of the DG Justice TRIIAL project concerning arbitration. Our main goal is three-fold: (1) to advance the discussion on the relationship between the European rule of law and arbitration, (2) to present the main findings stemming from research and training activities within the TRIIAL training workshops on arbitration, and (3) to formulate future research and practical questions on the topic at hand.
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This paper investigates the prospective application of arbitration by Transnational Private Regulation (TPR). It builds on the study of TPR developed by Fabrizio Cafaggi et al. TPR addresses the ever-increasing transfer of regulatory power from national to global levels, and from public to private regulators. TPR entails private regulatory co-operation be-yond the jurisdictional boundaries of States through voluntary standards. The regimes of TPR are built by a variety of actors, such as companies, NGOs, independent experts, and epistemic communities. Examples of TPR can be found in food safety, forestry management, trade, and derivatives, among other fields. More specifically, they concern private actors engaging in transnational coordination of standard setting such as the Forest Stewardship Council (FSC) that was developed to foster responsible management of the world’s forests. There are four main characteristics of TPR: legitimacy, quality, effectiveness, and enforcement. I will describe those four characteristics in brief here. First, the legitimacy of TPR is built around consent through voluntary entry, participation, and exit of regulated entities. Important to this contribution is that the legitimacy of TPR goes beyond its legal dimension, measured by purely legal standards. Hence, the legitimacy of TPR is largely determined by standards developed by social and economic institutions relevant to specific TPR regimes. The role of those institutions in standard settings is higher in private TPR regimes than private-public TPR regimes, where some forms of compliance are mandatory. Second, the quality of TPR corresponds to the ex ante and ex post evaluation cycle of regulatory processes. It is also linked with the transparency of TPR. Third, the effectiveness of TPR is measured according to the extent to which the objectives of TPR (or selected TPR regimes) are met. And finally, enforcement of TPRis understood as ‘ensuring compliance with commitments’. Enforcement of TPR can take place through courts, administrative agencies, and private dispute resolution—including the arbitration at the core of this contribution. Cafaggi’s study identified rather selective use of arbitration in TPR, but also recommended changes to make arbitration law more adaptable to TPR. Furthermore, the study recommended that more specialized dispute resolution institutions are created to exclusively serve TPR. Against this background, I shift the main focus of analysis from TPR to arbitration. Whereas Cafaggi argued that arbitration may be suitable for TPR as a means of private enforcement, in this paper I go even further, arguing that arbitration as a means of informal, out-of-court dispute resolution is well suited to strengthen the normativity of TPR. This is so because private arbitration actors (including, inter alia, arbitrators and arbitral institutions) are already equipped with the tools necessary to facilitate cross-border TPR, which is done through informal standards and procedures with origins in the communitarian values and reputational mechanisms used by different communities before the development of modern States. The roots of most private justice regimes—including arbitration—are informed by communitarian values such as collaboration, participation, and personal trust. Those values, together with other core characteristics of arbitration correspond to all core characteristics of TPR, making both systems comparable and complementary. The analytical framework incorporated in this paper follows the four core characteristics of TPR. Hence, the paper is organized into five sections. The first section contains the introduction. In the second section, I analyze the legitimacy of arbitration vis-à-vis the legitimacy of TPR. In the third section, I investigate the accountability of arbitration as a means of quality signaling vis-à-vis TPR. In the fourth section, I focus on the remedies available to arbitrators in a view of TPR’s effectiveness. Finally, in the fifth section, I analyze enforcement through arbitration and its impact on the exclusiveness versus complementarity of TPR regimes. Conclusions follow, including recommendations for future research. Part of topic "The blurring distinction between public and private in international dispute resolution"
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