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Investment Treaty Arbitration and Public Law

Author

Listed:
  • van Harten, Gus

    (Assistant Professor, Osgoode Hall School of Law, York University, Canada)

Abstract

The recent explosion of investment treaty arbitration marks a major transformation of both international and public law, above all because of the manner in which states have delegated core powers of the courts to private arbitrators. This book outlines investment treaty arbitration as a public law system and demonstrates how the system goes beyond all other forms of international adjudication in giving arbitrators a comprehensive jurisdiction to determine the legality of sovereign acts and to award public funds to businesses that sustain loss as a result of government regulation. The analysis also reveals some startling consequences of transplanting rules of commercial arbitration into the regulatory sphere. For instance, the system allows public law to be interpreted by arbitrators in private as a matter of course, with limited scope for judicial review. Further, arbitrators can award compensation to investors in ways that go beyond domestic systems of state liability, and these awards may then be enforced in as many as 165 countries, making them more widely enforceable than any other adjudicative decision in public law. The system's mixture of private arbitration and public law undermines accountability and openness in judicial decision-making. But, most importantly, it poses a unique and fundamental challenge - hitherto neglected by other commentators - to the principle of judicial independence. To address this, this book argues that the system be replaced with an international investment court, properly constituted according to public law principles, and made up of tenured judges.

Suggested Citation

  • van Harten, Gus, 2007. "Investment Treaty Arbitration and Public Law," OUP Catalogue, Oxford University Press, number 9780199217892.
  • Handle: RePEc:oxp:obooks:9780199217892
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    Citations

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    Cited by:

    1. Jordan Brennan, 2013. "The Power Underpinnings, and Some Distributional Consequences, of Trade and Investment Liberalisation in Canada," New Political Economy, Taylor & Francis Journals, vol. 18(5), pages 715-747, October.
    2. Brennan, Jordan, 2013. "The Power Underpinnings, and Some Distributional Consequences, of Trade and Investment Liberalisation in Canada (Preprint)," EconStor Open Access Articles and Book Chapters, ZBW - Leibniz Information Centre for Economics, vol. 18(5), pages 715-747.
    3. Robert Basedow, 2021. "The EU's International Investment Policy ten years on: the Policy‐Making Implications of Unintended Competence Transfers," Journal of Common Market Studies, Wiley Blackwell, vol. 59(3), pages 643-660, May.
    4. Henry Jiménez Guanipa & Natalia Castro Niño & Wilfredo Robayo Galvis, 2020. "Emergencia climática : Prospectiva 2030 : XXI Jornadas de Derecho Constitucional. Constitucionalismo en transformación. Prospectiva 2030," Books, Universidad Externado de Colombia, Facultad de Derecho, number 1273, htpr_v3_i.
    5. Brahms, Lisa, 2013. "Legitimacy in global governance of sovereign default: The role of international investment agreements," PIPE - Papers on International Political Economy 16/2013, Free University Berlin, Center for International Political Economy.
    6. Diaby-Pentzlin, Friederike, 2020. "Deficiencies of international investment law: What chances for "critical lawyers" to civilize global value chains and/or to transform the status quo of the economic world order?," Wismar Discussion Papers 04/2020, Hochschule Wismar, Wismar Business School.
    7. Lauge N. Skovgaard Poulsen & Emma Aisbett, 2011. "When the Claim Hits: Bilateral Investment Treaties and Bounded Rational Learning," Crawford School Research Papers 1105, Crawford School of Public Policy, The Australian National University.
    8. Milligan, Ben & O'Keeffe, Michelle, 2019. "Global Governance of Resources and Implications for Resource Efficiency in Europe," Ecological Economics, Elsevier, vol. 155(C), pages 46-58.
    9. Rao, Weijia, 2021. "Are arbitrators biased in ICSID arbitration? A dynamic perspective," International Review of Law and Economics, Elsevier, vol. 66(C).
    10. Axel Berger & Wan‐Hsin Liu, 2021. "Can the G20 serve as a launchpad for a multilateral investment agreement?," The World Economy, Wiley Blackwell, vol. 44(8), pages 2284-2302, August.
    11. Basedow, Robert, 2020. "The EU's international investment policy ten years on: the policy-making implications of unintended competence transfers," LSE Research Online Documents on Economics 105161, London School of Economics and Political Science, LSE Library.
    12. Chaisse Julien & Pomfret Richard, 2019. "The RCEP and the Changing Landscape of World Trade : Assessing Asia-Pacific Investment Regionalism Next Stage," The Law and Development Review, De Gruyter, vol. 12(1), pages 159-190, January.
    13. Johann Robert Basedow, 2022. "Why de‐judicialize? Explaining state preferences on judicialization in World Trade Organization Dispute Settlement Body and Investor‐to‐State Dispute Settlement reforms," Regulation & Governance, John Wiley & Sons, vol. 16(4), pages 1362-1381, October.
    14. Kuzhatov, Bagdat G., 2022. "The Energy Charter Treaty reform: Why and how to reach a consensus on fair and equitable treatment?," Energy Policy, Elsevier, vol. 163(C).
    15. Bart-Jaap Verbeek, 2022. "Embedded Neoliberalism and the Legitimacy of the Post-Lisbon European Union Investment Policy," Politics and Governance, Cogitatio Press, vol. 10(3), pages 110-120.

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