The Measure of Finality: A Dialectical Analysis of Legitimacy Concerns in International Investment Arbitration

2020 Journal of Law and Jurisprudence  
Over the last two decades, the institution of investment treaty arbitration has increasingly attracted a particular type of academic criticism. In challenging the overall coherence of an international adjudicative social practice, the spectre of a legitimacy crisis has successively established itself in the scholarly language-game orbiting investor-State dispute settlement. This article offers a structural explanation of legitimacy concerns by exploring the epistemic framework within which
more » ... k within which legitimacy issues materialise. On the basis of a dialectical analysis, it is argued that legitimacy challenges are intrinsically linked to evaluations of performances of arbitral reasoning, in particular, and to the epistemic condition of the doctrine of finality in general. Procedural autonomy (contract) and the latent dependency of proceedings on State authorities (adjudication) will be conceptualised as the two defining moments underlying the doctrine of finality. The article concludes by applying the developed analytical template of finality as a measure of legitimacy in order to review the legal reasoning in the two cases of Lauder/CME v The Czech Republic, as well as in Ampal-American and Others v Egypt, paradigmatic instances of concurrent treaty arbitration proceedings. A. INTRODUCTION: LEGITIMACY, CRISIS AND FINALITY Over the last two decades, the spectre of a legitimacy crisis in international investment law (IIL), and in investor-State dispute settlement mechanisms (ISDS) in particular, has attracted increasing scholarly attention. While this specialised field of law, together with the institutions and academic controversies it has generated, is still young, any discussion of legitimacy may draw on an established scholarship of many centuries' standing. A prominent figure in this tradition is the sociologist Max Weber, who, writing during the early 20 th century, formulated what he believed to be universal categories of legitimisation for systems of social interaction. Within every legal order, in which the conformity of those who are acting subjects to it relies primarily on a belief in the lawfulness of adjudicative processes and the legality of law-issuing authorities, affirmations and concerns evoking the term 'legitimacy' have a binary argumentative structure. A legal order's legality is recognised as legitimate, Weber notes, either because the procedural rules of dispute settlement are derived from a 'voluntary agreement of
doi:10.14324/111.2052-1871.124 fatcat:t6o2dfoes5hvzjsiyymtrbfkqu