Investment Arbitration As Constitutional Law: Constitutional Analogies, Linkages, and Absences
Bibliographic record
Abstract
This chapter examines analogies and linkages between investment arbitration and judicial review under national constitutions. The implications of constitutional analogizing are examined from both a functional and normative point of view. In the first part, two modes of constitutional analogizing are identified. ‘Project’ and ‘critical’ modes are offered as heuristics for understanding the constitution-like functions performed by investment arbitrators in the course of interpreting substantive treaty protections. Adopting a critical mode reveals numerous problems that investment arbitration chooses to remain silent about, including a version of the separation of powers that is difficult to defend from a constitutional angle. The second part evaluates the performance of investment arbitrators in a few instances where tribunals have directly engaged with national constitutional law in the course of issuing reasons. The focus in on how tribunals handle interpretation of constitutional texts and high court rulings as law applicable or relevant to an investment dispute. These exercises in constitutional engagement, it is argued, turn out to be less than satisfactory. Finally, in the last part, a significant defect in constitutional analogizing is confronted: that the ‘people’ are absent from its account. The suggestion that international courts, and investment arbitration in particular, serve as constituent authority in the absence of a polity is examined and critically assessed. The chapter concludes by arguing that investment arbitration will continue to be of doubtful legitimacy so long as investment arbitration is characterized as performing constitution-like functions.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.010 | 0.027 |
| Meta-epidemiology (narrow) | 0.000 | 0.001 |
| Meta-epidemiology (broad) | 0.001 | 0.001 |
| Bibliometrics | 0.003 | 0.003 |
| Science and technology studies | 0.004 | 0.040 |
| Scholarly communication | 0.015 | 0.026 |
| Open science | 0.002 | 0.008 |
| Research integrity | 0.003 | 0.008 |
| Insufficient payload (model declined to judge) | 0.009 | 0.000 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".