The uneasy delegation: conditional judicialization of international investment dispute settlement

Abstract This article explores the paradoxes between judicialization and de-judicialization in the reform of Investor-State Dispute Settlement (ISDS). It critically assesses reform proposals from four dimensions relating to the judicialization of the mechanism: binding precedents, scope of jurisdiction, independence of investment tribunals, and accessibility of dispute settlement. It introduces the concept of ‘conditional judicialisation’, a phenomenon that reflects the increasing demand of states for the rule of law on the one hand and political control over ISDS tribunals’ decision-making on the other. Drawing insights from the delegation theory, it argues that conditional judicialization arises from an imbalanced delegation relationship, where states have delegated excessive power to investment tribunals and subsequently expose themselves to significant risk.