Agora – Asymmetry and Equality of Arms: Foreword
Abstract
This article addresses some procedural challenges that arise primarily in investment disputes—i.e., treaty-based arbitration against states—which concern special procedural privileges invoked by the respondent state and actions specific to a state that may amount to an abuse of its powers, posing a risk to the integrity of the arbitral procedure. It argues that investment treaty arbitration is asymmetrical in nature, as treaty states wield disproportionate powers vis-à-vis private claimants. When deployed inappropriately, such powers can undermine the principle of equality of arms in adjudication. In such situations, there is a duty on the arbitral tribunal to proactively restore the equality of arms affected by an abuse of government powers. The key concept that provides substance to the tribunal’s duty to restore this balance is that of inherent powers.
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Citation
Kjos, H.E. (2010) “Agora -- Asymmetry and Equality of Arms: Foreword,” Arbitration International, 26(1), pp. 1–2.