Procedural Minimum Standards under the International Rule of Law and Article 6(1) European Convention on Human Rights in Investor-State Dispute Resolution

Abstract

This thesis sheds light on the evolution of the procedure of investor-State dispute resolution over time and analyses its compliance with the international rule of law. To this end, the term investor-State dispute resolution is intentionally understood very broadly. It includes any forum in which a dispute between a foreign corporate entity or individual and the host State relating to any type of investment can be heard by a body that renders a binding decision. This includes dispute resolution before standing bodies, commercial arbitration, investment arbitration, and the newly established investment court system.

To understand whether the procedural evolution of ISDR is in compliance with the international rule of law, the main corpus of this thesis identifies different approaches to the formalistic international rule of law. Instead of attempting to define the term, it uses the right to a fair trial as contained in Article 6(1) of the European Convention of Human Rights as an example for the international rule of law. By addressing six major procedural and institutional features (standing in front of the dispute resolution bodies, appointment of members; their qualifications; conduct of the proceedings; appeal; recognition and enforcement) and comparing the differences between them, this thesis identifies procedural particularities of each of the dispute resolution concepts.

Having laid out the requirements of the international rule of law, each individual section addresses examples of provisions included in major international agreements or arbitral rules and analyses their compliance with procedural minimum standards. The result of the exercise is twofold. First, it sets out a framework that must be complied with under Article 6(1) ECHR. Second, it proposes adequate provisions to attempt a first suggestion of norms that can be included in any possible reform.

Date of Award	1 Jan 2023
Original language	English
Awarding Institution	King's College London
Supervisor	Federico Ortino (Supervisor) & Holger Hestermeyer (Supervisor)