The (Ir)relevance of Transnational Public Policy in Investment Treaty Arbitration

Abstract

In his article ‘Transnational Public Policy as a Vehicle to Impose Human Rights Obligations in International Investment Arbitration’, Jean-Michel Marcoux investigates whether international investment tribunals can rely on transnational public policy to impose human rights obligations on investors. While I generally side with the idea that international human rights as such are highly relevant in (some) international investment arbitrations, I argue in this article that transnational or truly international public policy as a concept is largely, and as a matter of principle, irrelevant in investment treaty arbitration. Secondly, even if one were to accept that transnational public policy
has a role to play, I question the usefulness of framing various human rights issues as questions of ‘transnational public policy’.

Keywords: human rights, investment treaty arbitration, jus cogens, mandatory rules, public policy