Between Rights and Remedies: The Access to Investment Treaty Arbitration as a Substantive Right of Foreign Investors

Arbitrators in investment treaty arbitration have not been reluctant to express their views that the access to international arbitration forms part of the substantive protection of investors. The present article examines what is the added legal value of such views, and whether they are capable of requalifying procedural rules as substantive ones, or alternatively, breaking the separation line between substantive and procedural rules. This is discussed in the context of the application of most-favoured-nation clauses to dispute settlement clauses, as a case study. It is argued that the arbitral qualification of dispute resolution clauses as a means of investors’ protection cannot prompt a change regarding their legal nature, and has primarily an instrumental role in legitimizing expansionary interpretive outcomes. But the fact that a blurred separation line between substantive and procedural rules appears acceptable in investment treaty arbitration implies fragmentation from general international law in that respect, effected through arbitral lawmaking.