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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 and which concern special procedural privileges
invoked by the respondent state and actions which are specific to a
state which may amount to an abuse of its powers and raise a risk
for the integrity of the arbitral procedure. It argues that investment
treaty arbitration is asymmetrical in nature in that, the treaty states
wield disproportionate powers vis-à-vis the private claimants. When
deployed inappropriately, such powers can undermine the principle
of equality of arms in adjudication. In such a situation, there is a duty
on the arbitral tribunal to proactively try to restore the equality of
arms affected by abuse of government powers. The key concept
that provides substance to fulfil the tribunal's duty to restore the
equality of arms is that of inherent powers.