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1 Constraints on Power and Authority in International Investment Arbitration

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Chapter Summary

The investment law community is confronted with what seem to be perpetual challenges. These include the scope of the fair and equitable treatment standard and its interaction with the minimum standard of treatment; the appropriate reach of the MFN clause; the definition of investment under the ICSID Convention and multiple issues relating to investors, including the position of dual nationals, the standing of minority shareholders to submit claims, the permissibility of nationality planning, and the functioning of denial-of-benefits clauses. This chapter addresses two issues. The first is whether there is a limit to how much states, outside their role as respondents in a dispute, can attempt to influence the investor-state arbitration process without compromising the judicial nature of it. The second question is how much power tribunals have over issues that are not addressed by treaties or by other sources of their authority.

Keywords: ICSID Convention; investment law community; investor-state arbitration; MFN clause; nationality planning



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