Should arbitrators “live” in public law arbitration? The case for a more demanding standard of independence and impartiality

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Abstract

The text intends to make the case for a more demanding standard of independence and impartiality in public law arbitration. Such standard is grounded on its functional, substantive, and procedural features, namely the fact that public law arbitrators review the validity of sovereign action, the non-confidentiality of the awards and the similarity of the claims. We explore whether the existing rules on public law arbitration (from a Portuguese standpoint) are fully in line with such more-demanding standard. Since a similar debate is also taken place in investment treaty arbitration, the text analyses the suitability of the proposals which have been put forward to address investment arbitrators’ (alleged) bias and if pursuant to the ECJ there is a new rule under EU law: no public law arbitration without guarantees of institutionalized independence.
Translated title of the contributionDevem os árbitros devem "viver" na arbitragem de direito público? Por um padrão mais exigente de independência e imparcialidade
Original languageEnglish
Pages (from-to)55-74
Number of pages20
JournalE-Pública
Volume9
Issue number1
Publication statusPublished - 6 Apr 2022

Keywords

  • Public law
  • Investment arbitration
  • Sports arbitration
  • Independence
  • Impartiality
  • Appearance of bias
  • Judicial review
  • ICSID Convention

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