The Breakdown of the Control Mechanism in ICSID Arbitration

Abstract

Arbitration is a delegated and restricted power to make certain types of decisions in certain prescribed ways. Any restricted delegation of power must have some system of control. Controls are techniques or mechanisms in engineered artifacts, whether physical or social, whose function is to ensure that an artifact works the way it was designed to work. In social and legal arrangements in which a limited power is delegated, control systems are essential; without them, the putative restrictions disappear and the limited power may become absolute. The impulse to establish control systems in political processes imports a dynamic conception of social and political processes on which, as is wellknown, the United States constitutional experiment is based.