When some are more equal than others: The need for a more substantive conception of "equality of the parties" in investment arbitration

Abstract

The equality of the parties is a fundamental procedural norm. The proper application of this principle has faced novel challenges in investor-State arbitration and World Trade Organisation dispute settlement, particularly in regulating the presentation of evidence and the exercise of State sovereign authority. While parties in these fora are nominally equal, there is often a vast discrepancy between their respective coercive and economic power. In light of this, the principle of equality of the parties must be given more substantive content, rather than limited to a strict notion of formal equality. Tribunals should have regard to these wider considerations as part of their inherent power and duty to safeguard the integrity of their proceedings.