The new award in Merck v Ecuador: one of the most interesting, if not the most, aspects of international {investment} tribunals is what was stated in Loewen:”The line may be hard to draw, but it is real.” When should an international tribunal, composed of individuals not accountable to any electorate, insert itself into the domestic affairs of a state to correct what it perceives to be serious injustice and act as a super appellate body. While I do not know the Merck case other than what summaries I read, I do recall the old con law cases of “substantive due process” and the like. What I read is the facts are awful in Merck as they were in Loewen.
First posted on LinkedIn 24th March 2018
