Legitimacy Challenges in Investor-State Arbitration Interpretative Principles: Reflecting on a Balancing Tool
Collins C. Ajibo
ABSTRACT: Developing a coherent and consistent interpretative paradigm for the procedural settlement of investment disputes has been a continuing conundrum that underpins the current International Centre for the Settlement of Investment Disputes (ICSID)1 legitimacy crisis. The article intends to extend this private-public debate further by reflecting on a balancing doctrine. Although various interpretative doctrines have been adopted including lately the proportionality doctrine, none has succeeded in embedding equitable balance between the contracting parties in matters of regulatory imperatives of the host state. Consequently, it is the contention of this article that such requisite balancing of interests could embed if the ICSID could take a cue from the jurisprudence of European Court of Human Rights (ECHR) by adopting the theoretical premise of the margin of appreciation doctrine.