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The Erik Castrén Institute of International Law and Human Rights
Faculty of Law
P.O. BOX 4 (visiting address: Yliopistonkatu 3)
FI-00014 UNIVERSITY OF HELSINKI
Tel: +358 (0)29 4123140

intlaw-institute(at)helsinki.fi







 

Legitimacy and International Investment Arbitration

Welcome to hear a paper presented by Alexis Galán (Bocconi University, Milan) on

Legitimacy and International Investment Arbitration

Friday 27 January from 12:00-14:00
Porthania, (Yliopistonkatu 3), room P672, 6th floor

Abstract:

International investment arbitration represents one of the most burgeoning and contested areas within international law. Despite the disagreements about the state and future of international investment arbitration, there is an almost absolute agreement about the importance of legitimacy for the investment regime’s stability. Despite the universal acceptance of legitimacy, this article contends the weight normally given to the concept. Legitimacy cannot perform what is expected of it due to its conceptual particularities. Usually, the literature treats legitimacy as having a twofold dimension: a descriptive and an evaluative (or normative) part. The descriptive part involves defining legitimacy as having such and such elements - i.e., accountability, transparency, fairness, consistency, etc. At the same time, those elements involve a certain evaluative stance. To argue that the investment regime is not accountable requires evaluating whether the regime has achieved a particular standard. Drawing on the distinction between thin and thick concepts as developed in philosophy of ethics, it is contended that legitimacy is a thin concept, a purely evaluative concept detached from any particular substance. The consequences from legitimacy’s thinness affect the explanatory relevance of legitimacy. First of all, any attempt to circumscribe legitimacy will irremediably fail as it will be unable to fend off other alternatives because there is no ‘correct’ account. Alternatively, if we simply aggregate all conceivable elements related to legitimacy, we not only end up with an incoherent list but also with explanatory problems. Because legitimacy refers to so much it becomes almost impossible to discern what the actual role of legitimacy is in relation to the stability of any institution or norm. As a result, legitimacy becomes a catch-all term with no analytical edges. In light of these consequences, this article proposes an alternative understanding to legitimacy which acknowledges its thinness and which avoids the problems besetting the other accounts. Legitimacy is understood as the use of the grammatical force of legitimacy in order to pursue certain courses actions. It highlights the role of legitimacy as used by actors in opposition to others. The advantage of this account is threefold: it is not attached to any particular substance, it is dynamic, and it does not assume the existence of stability. It is sustained that international lawyers need to embrace the open-ended nature of legitimacy which equally requires the acceptance of conflicting views that are not easily resolvable.

Coffee will be served. No registration needed.