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5 J. Int'l Disp. Settlement 1 (2014)

handle is hein.journals/jloildte5 and id is 1 raw text is: Journal of International Dispute Settlement, 2014, 5, 1-4 a doi: 10.1093/jnlids/idt029 Advance Access Publication Date: 17 January 2014 EDITORIAL Investment Arbitrators' Evident Lack of Restraint Investment treaty arbitration has emerged as a prosperous forum in which a small group of legal professionals-at its core, a few dozen individuals-has immense power to de- cide what legislatures, governments and courts can do, and at what cost to the public, without conventional safeguards of judicial independence and procedural fairness. The author's new book, a chapter of which is reproduced in this volume of the Journal, focuses on the arbitrators as agents of their fate, alongside that of states and investors, and especially on whether they showed restraint in ways often used by domestic or international courts. Commentators have proposed different forms of restraint in investor-state arbitra- tors. For example, Burke-White and von Staden suggested a general margin of appre- ciation for states; Stone Sweet argued for general limitations on investor protection and lauded the 'grand entrance' of proportionality in Continental Casualty; Schill called for deference based on a comparative analysis of domestic public law; Moloo and Jacinto advised that deference should be limited to the treaty language and, by implication, to ring-fenced restraint within particular treaty standards.1 These ideas are not exhaustive or mutually exclusive; each may have merit and should be given attention. Yet any proposal for restraint faces a challenge in light of the present record of arbitrator performance. After a comprehensive search of the arbitrators' reasoning for language that could signal restraint, it was clear that the arbitrators, with few ex- ceptions, rarely signalled restraint in any of a variety of ways. In the first place, this contradicted claims that investment treaty arbitration is, or is becoming, more 1 W Burke-White and A von Staden, 'The Need for Public Law Standards of Review in Investor-State Arbitrations' in SW Schill (ed), International Investment Law and Comparative Public Law (OUP 2010) 715-19; A Stone Sweet, 'Investor-State Arbitration: Proportionality's New Frontier' (2010) 4 L & Ethics of Human Rights 47, 73-6; SW Schill, 'Deference in Investment Treaty Arbitration: Re-conceptualizing the Standard of Review' (2012) 3 JIDS 577; R Moloo and J Jacinto, 'Reviewing Standards and Standards of Review: Domestic Public Interest Regulation in International Economic Law' in KP Sauvant (ed), Year- book on International Investment Law & Policy 2011-2012 (OUP 2013) 550-62. © The Author 2014. Published by Oxford University Press. . 1 All rights reserved. For permissions, please e-mail: journals.permissions@oup.com

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