A golden mean approach to independence and impartiality in investment arbitration

Abstract The notion of ‘rule of law’ consists of several substantive and procedural requirements, including fair trial and due process, usually guaranteed by independent and impartial adjudicators. Part of the criticism against investor–State dispute settlement in recent years exists because party-appointed arbitrators allegedly lack independence and impartiality; hence, the arbitration process is unfair and the rule of law is breached. This article studies independence and impartiality in investment arbitration measured against the yardstick of the rule of law and party autonomy. For this reason, it first examines relevant safeguards of independence and impartiality in the current system and potential reform proposals. Thenceforth, the article argues in favour of a ‘golden mean’ approach which avoids the two extremes of excess and deficiency in said proposals, adheres to the legal framework of party autonomy and the rule of law, and opts for incremental changes leading to ISDS improvement.