Investment Treaty Arbitration and Public Law
Series: Oxford Monographs in International Law;
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Product details:
- Publisher OUP Oxford
- Date of Publication 22 March 2007
- ISBN 9780199217892
- Binding Hardback
- No. of pages224 pages
- Size 241x164x16 mm
- Weight 522 g
- Language English
- Illustrations b+w illustrations 0
Categories
Short description:
The recent explosion of investor claims against sovereign states under investment treaties marks a revolution in international and public law. By establishing this special system of international arbitration, states have unwittingly privatized key powers of the courts in their role as a branch of government. This book analyses how this development is corrupting our historic tradition of judicial independence.
MoreLong description:
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.
Table of Contents:
Introduction
A Return to the Gay Nineties?
From Contract to Public Law
Scope and Standards of Review
The Transformation of International Law
Approaches and Interpretations
The Businessman's Court
