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Resolving Investor State Dispute Settlement’s Legitimacy Crisis: The Case for Reinstating the Requirement to Exhaust Local Remedies

Author:

Sebastian Timothy Whitefoord Curtis

London School of Economics, GB
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Abstract

Resolving Investor State Dispute Settlement’s Legitimacy Crisis: The Case for Reinstating the Requirement to Exhaust Local Remedies This article dissects a variety of structural issues that contribute to the “legitimacy crisis” currently faced by Investor State Dispute Settlement (ISDS) and in particular, treaty-based Investor-State Arbitration (ISA). Primarily, it addresses issues of jurisdictional overlap with domestic courts, and the inability of ISA to engender “good governance” norms and the rule of law in respondent states. By examining these structural issues and their relationship with the difficult, and at times inflammatory relationship between the international investment protection regime and domestic governments and judiciaries, it contends that further internationalization, or “systemic reform” in lieu of the proposals made by the European Union is not adequate for resolving the legitimacy crisis. Rather, it proposes that a more radical, reintegration of domestic courts is necessary through the reinstatement of a traditional requirement of customary international law, the requirement to exhaust local remedies before commencing arbitral proceedings.
How to Cite: Curtis, S.T.W., 2022. Resolving Investor State Dispute Settlement’s Legitimacy Crisis: The Case for Reinstating the Requirement to Exhaust Local Remedies. LSE Law Review, 7(3), pp.327–368.
Published on 16 Mar 2022.
Peer Reviewed

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