Designing a Multilateral Investment Court for Procedural Justice

Abstract

Abstract Working Group III of the United Nations Commission on International Trade Law has embarked on a mandate to reform investor-State dispute settlement (ISDS), through identifying a set of concerns that merit multilateral procedural reform. In response, the EU has proposed creating a standing multilateral investment court. Despite the importance of procedural justice theory in domestic legal systems, its value as a resource in international dispute resolution is under-recognized. This article focuses on procedural justice through the literature on the social psychology of justice, as offering an empirically-based theoretical foundation that helps identify key elements and options in designing investment adjudication. Within ISDS reform, the authors focus on necessary innovations in independence and impartiality, transparency, participation, and correction of error, the key pillars of procedural justice research. The EU proposal suggests substituting a more traditional judicial model of dispute resolution for the current and problematic arbitral model, which aligns to a greater degree with the principles of procedural justice.