MJIEL Vol 14 Issue 2 2017 - Article 3

Jurisdictional Competence and Deferential Standard of Review in Investor-State Dispute Settlement:
A Case for Balance of Prerogatives
Collins C. Ajibo and Ndubisi Nwafor
 
ABSTRACT: The paradoxical interplay between the regulatory prerogatives of the host state and the jurisdictional competence of the investor-state dispute settlement body remains the albatross of the adjudicatory standard of review in investor-state dispute settlement process, crystallising in crisis of credibility and legitimacy of the adjudicatory outcomes. Although the proportionality doctrine is being applied in principle, but rather than ameliorate the situation, it has compounded it given that investor-state tribunal lacks embeddedness to vital host state institutional forces that underpin the contested policy or decision. The concept margin of appreciation may appear ameliorative but it has not eliminated the conflicting interests. Consequently, it is the contention of this article that investor-state dispute settlement body should internalise a deferential attitude to compelling regulatory issue by remitting such sphere to host state national institutional competence. The implication would be that the investor-state tribunal will continue to exercise jurisdiction in all matters pursuant to its mandate subject to remission of compelling regulatory issue to host state jurisdictional competence. This will result in segmentation and delineation in jurisdictional competence with fewer predilections to conflict in prerogatives.

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