The US‐EU Transatlantic Trade and Investment Partnership: Should It Leave a Door Open for Non‐Legal Arbitrators?

Date01 December 2016
Published date01 December 2016
C R Q, vol. 34, no. 2, Winter 2016 189
© 2016 Association for Confl ict Resolution and Wiley Periodicals, Inc.
Published online in Wiley Online Library ( • DOI: 10.1002/crq.21172
The US-EU Transatlantic Trade and Investment
Partnership: Should It Leave a Door Open
for Non-Legal Arbitrators?
Katia Fach Gómez
is article refl ects on the suitability of including non-legal arbitra-
tors in certain investment arbitrations. It presents diff erent mechanisms
that have been used in the investment arbitration context to aid legal
arbitrators with scientifi c-technical issues and contemplates the draw-
backs of this external competence. After analyzing various sectors in
which non-legal experts provide internal competence (international
inspection boards, specialized national courts, commercial arbitration
tribunals, and inter-state arbitration tribunals), the article concludes
that incorporating arbitrators with scientifi c-technical competence into
international investment tribunals on an ad casum basis may not be
such a far-fetched idea. Finally, various de lege ferenda proposals that
would achieve the common goal of not barring non-legal “judges” from
the future US-EU investment court are put forward.
E conomic and political relations between the United States and the
European Union (EU) are at a turning point.  e Transatlantic Trade
and Investment Partnership (TTIP) is currently under negotiation, and it
seems clear that the text ultimately agreed on will play a decisive role in the
future of these key economic powers.  e chapter on investment is proving
to be one of the most controversial in the negotiations. To be more pre-
cise, the section dealing with Investor to State Dispute Settlement (ISDS)
is work has been supported by the Alexander von Humboldt Foundation ( Forschungssti-
pendium für erfahrene Wissenschaftler ). e author is a member of the Spanish Research
Projects DER 2012-36806, Subprograma JURI, and e-Procofi s S 14/3 DGA.  anks to the
anonymous reviewers for their constructive and valuable comments. Comments are welcome
and can be sent to
C R Q • DOI: 10.1002/crq
recently drafted by the European Commission (EC), which proposes the
creation of an investment court system (ICS), has generated a tsunami
among scholars on both sides of the Atlantic.
Against this background, the professional profi le of those responsible
for resolving these investment disputes is an absolutely fundamental issue.
According to a classic utterance, the three key elements of international
arbitration are “arbitrator, arbitrator and arbitrator” (Giorgetti 2013 , 440).
ese individuals were renamed “judges” in the 2015 Draft Text of the
European Commission on Investment Protection and Investment Court
System in the TTIP (2015 EC draft text) and are the soul of the ISDS
mechanism. Up to now, the professional profi le of investment arbitrators
has always been linked to the legal fi eld, an a priori suitable choice given
that the claims arising in investment arbitration are of a legal nature and the
procedure used to resolve those claims also has a legal basis and structure.
Nevertheless, there is a lengthy ongoing debate among scholars on the
main features that make investment arbitration a practical and scientifi c
area with its own identity (Van Harten 2008 ). In contrast to commer-
cial arbitration, investment arbitration has to accept responsibility for its
various public dimensions and be aware of the expectations of its “broader
audience” (Schill 2011 , 26). In addition, the facts giving rise to investment
claims sometimes present a highly scientifi c or technical framework. In this
context, it does not seem unreasonable that doubts may arise about legal
arbitrators’ capacity to reach informed decisions in investment cases where
non-legal aspects have signifi cant weight.
is article aims to develop this reasoning and refl ect on the suitability
of including non-legal arbitrators in certain investment arbitrations.  e
second section takes a comparative approach to the issue by analyzing the
type of arbitrator competence that is required in the fi eld of commercial
arbitration and in a range of investment arbitration provisions.  e third
section presents a possible classifi cation of investment disputes, taking
into account the relevance of the scientifi c-technical issues involved.  e
fourth concerns the diverse mechanisms that have traditionally been used
in the investment arbitration context to aid legal arbitrators on scientifi c-
technical issues (external competence) and refl ects on their drawbacks.  is
section also examines the fears that may arise if non-legal arbitrators are
incorporated into the core of investment arbitration (internal competence).
e analysis of highly diverse sectors (e.g., international inspection boards,
national courts, inter-state arbitration tribunals) in the fi fth section leads to
US-EU Transatlantic Trade and Investment Partnership 191
C R Q • DOI: 10.1002/crq
the overall conclusion that incorporating arbitrators with scientifi c-techni-
cal competence into international investment tribunals on an ad casum basis
may not be such a far-fetched idea.  ese considerations come together in
the sixth section, which puts forward some de lege ferenda proposals applica-
ble to the US-EU TTIP.  ese proposals can also be extrapolated to future
initiatives such as the creation of a multilateral dispute settlement mecha-
nism (e.g., a permanent investment court).  e 2015 EC draft text deals
with “judge” competence with extreme caution, leaving no room for scien-
tifi c-technical “judges.” While aiming to avoid strict corporatist approaches,
various specifi c wordings that would go some way toward not excluding
non-legal “judges” from a future US-EU investment court are suggested.
Embracing this change would also require additional changes to the pro-
spective US-EU TTIP, which are also outlined in this section.
Arbitrator Competence in Commercial and Investment
Arbitration: A De Lege Lata Approach
is section presents the competences that diverse legal texts require from
arbitrators who decide international investment disputes. Before tackling
this issue, it is useful to recall some key ideas in the context of commercial
Commercial Arbitration
Many national legal texts in this sector either fail to lay down specifi c
requirements regarding arbitrators’ qualifi cations or establish very obvious
general requirements such as having full legal capacity to enter into legal
transactions or having political rights (Weigand 2009 ).  is means that
most national legal systems do not require arbitrators to be lawyers.  e
rules of the main international arbitral institutions agree on the impor-
tance of arbitrator neutrality, impartiality, and independence but do not
usually include restrictive defi nitions regarding their professional compe-
tences. Many diff erent types of professionals, and not only legal experts,
are thus allowed to serve as commercial arbitrators.
However, the practice of arbitration as managed by various general arbi-
tral institutions refl ects a reality that is diametrically opposed to this for-
mal scenario of having few or no requirements for arbitrator competence.
Relevant statistical studies show that the vast majority of international

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