Investment Treaty Arbitration and Public Law

Paperback | August 20, 2008

byHHA Van Harten

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The recent explosion of investment treaty arbitration marks a revolutionary change in both international and public law, above all because it demonstrates how states have unwittingly privatised key powers of the courts in public law. This book outlines investment treaty arbitration as a public law system, by precisely demonstrating the significance of giving arbitrators comprehensive jurisdiction to decide regulatory disputes between business and state. In doing so, it exposes some startling consequences of transplanting rulesof commercial arbitration into the regulatory sphere. First, private arbitrators can award compensation to investors in ways that go well beyond domestic systems of state liability in public law. Second, these awards can be enforced in as many as 165 countries, making them more widely enforceablethan other judicial decisions in public law. Third, public law can be interpreted in private as a matter of course, without any appeal to a court to correct errors of law. The conflict between private arbitration and public law poses a serious challenge to open and accountable judging. But the critical flaw of the system - hitherto neglected - is its threat to judicial independence based on security of tenure. Under investment treaties, business claims against thestate are decided by privately-contracted adjudicators, who win appointments only as more claims are brought. Thus, as the book explains, the 'judge' has a financial stake in how public law is interpreted and in the outcome of the dispute. While it is laudable to use international adjudication toresolve controversial disputes, the benefits of a global economy are no excuse for corrupting our historic tradition of independent courts.

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The recent explosion of investment treaty arbitration marks a revolutionary change in both international and public law, above all because it demonstrates how states have unwittingly privatised key powers of the courts in public law. This book outlines investment treaty arbitration as a public law system, by precisely demonstrating the...

Assistant Professor, Osgoode Hall Law School, York University, Ontario
Format:PaperbackDimensions:248 pages, 9.21 × 6.14 × 0.58 inPublished:August 20, 2008Publisher:Oxford University PressLanguage:English

The following ISBNs are associated with this title:

ISBN - 10:0199552142

ISBN - 13:9780199552146

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Table of Contents

1. Introduction2. Background3. Individualization4. Scope and Substance5. Approaches and Interpretation6. From Contract to Governing Arrangement7. Conclusion