Please note that the disputation will be streamed and some of the seats behind the candidate will be visible for those who are watching.
Participate at the disputation here
A record of the trial lecture will be available here from November 16
Adjudication committee
- Professor Giuditta Cordero Moss, University of Oslo (leader)
- Professor Andrea Björklund, McGill University, Canada (1. opponent)
- Professor Michael Waibel, University of Vienna (2. opponent)
Chair of defence
Vicedean Marianne Jenum Hotvedt
Supervisors
- Professor Ivar Alvik, University of Oslo
- Professor Duncan Kennedy, Harvard University, MA, USA
- Professor Ola Mestad, University of Oslo
Summary
Judicial Review in Investment treaty Arbitration
Expropriation, regulations and other acts by states and public authorities may infringe on companies and other private interests. Foreign investors can claim compensation for such infringements by initiating international arbitration against host states – if facilitated by a bilateral investment treaty or similar. In this way, international arbitrators are set to assess states’ compliance with their international treaty obligations – and thereby to review the public acts of states.
This thesis investigates and discusses in what way and to what extent investment treaty tribunals review the public acts of states. It concludes that a minority of tribunals scrutinise or balance public acts in a manner comparable to judicial review performed by national courts. Instead, the majority of tribunals adhere to a traditional review approach based on customary international law that focuses on the effect of public acts.
A response to the scholarly promotion of public law methodologies
Investment treaty arbitration is covered extensively in legal scholarship. This thesis responds to the scholarly focus on legitimacy problems - in particular the failure of tribunals to balance state interests against investment protection. An increasing amount of legal scholars prescribes public law methodologies as a remedy to this problem. However, there has been no comprehensive studies of the review approaches applied by investment treaty tribunals. Consequently, tribunals’ responses to the backlash have been uncertain.
This thesis analyses all awards in English rendered within the time-period 2015-2021 on indirect expropriation and fair and equitable treatment claims. It applies an original and customised analytical framework that makes it possible to identify variations in the adopted review approaches by tribunals, and categorises them as either public law review, private law review, or customary international law review.
It thereafter analyses states’ recent treaty reforms and tribunals’ assessments of claims based on such reformed oriented treaty provisions. This investigation reveals that states are seeking to raise the threshold for breach and to safeguard their right to regulate on matters of essential public interest, but without explicitly promoting public law oriented review approaches. The amount of rendered awards based on reform oriented treaty provisions are still limited, but the material shows that treaty reforms need to be explicit and detailed in order to have an actual effect on tribunals’ review approaches.
Traditional review upheld by system stakeholders
This thesis argues that contrary to the scholarly promotion, most tribunals and states seem unwilling to endorse public law oriented review approaches in investment treaty arbitration. It shows that change has to come from within, and that tribunals need a clear mandate in order to endorse further use of public law methodologies. The problematised imperfections are thus maintained by the regime stakeholders, and primarily by states’ design of bilateral investment treaties. In this way, states prioritise the protection of foreign investments against political risk and are unwilling to assign public law review to arbitrators, which potentially could allocate the risk of political change to foreign investors.