Investment Treaty Arbitration and Public Law, by Gus Van Harten

7 Pages Posted: 19 May 2009  

Scott Shackelford

Indiana University - Kelley School of Business - Department of Business Law; Harvard Kennedy School Belfer Center for Science & International Affairs; Center for Applied Cybersecurity Research; Stanford Center for Internet and Society; Stanford Law School

Date Written: May 12, 2009

Abstract

For most of the twentieth century, international courts and tribunals rarely enjoyed blanket jurisdiction over foreign nationals. This has changed with the advent of ‘investment treaty arbitrations.’ Investment treaty arbitration is a treaty-based regime that uses rules and structures of international law and private arbitration to make governmental choices regarding the regulatory relationship between investors and the state (p. 8). Although tribunals exist around the world, the primary and most public arena for investment-treaty arbitration is the World Bank’s Centre for Settlement of Investment Disputes (ICSID). The body has experienced a fourteen-fold spike in arbitrations since the mid-1990s, with cases centering on the former communist block and Latin America.

Unlike international commercial arbitration or inter-state adjudication, investment-treaty arbitration involves at its heart the regulatory conduct of states. It allows, for the first time in world history, for independent tribunals to check sovereigns’ regulatory power through installing individualized regimes of state liability for failing to treat investments within certain norms (p. 103). This is not possible in customary international law or in most treaty regimes such as in humanitarian or environmental law. States as a general rule are extremely reluctant to delegate to supranational institutions the power to be a check on their regulatory authority. This naturally begs the question as to why states have voluntarily acquiesced to have their sovereignty checked through investment treaty arbitrations. Gus Van Harten attempts to answer this fundamental question in Investment Treaty Arbitration and Public Law, as well as to assess the essential character and significance of this new system in public international law. His analysis includes four primary parts: a case study demonstrating the core questions of public law that arbitrators now regularly decide; a chronology of the development of investment-treaty arbitration; a discussion of why states have assented to the creation of these tribunals; and an explication exploring why investment-treaty arbitration is such a revolutionary development in international law. These arguments will be addressed in kind, followed by three critiques of the book along with suggestions for reform.

Keywords: investment treaty arbitration; international arbitration; public international law

Suggested Citation

Shackelford, Scott, Investment Treaty Arbitration and Public Law, by Gus Van Harten (May 12, 2009). Stanford Journal of International Law, Vol. 92, No. 1. Available at SSRN: https://ssrn.com/abstract=1403468

Scott J. Shackelford (Contact Author)

Indiana University - Kelley School of Business - Department of Business Law ( email )

Bloomington, IN 47405
United States

Harvard Kennedy School Belfer Center for Science & International Affairs ( email )

79 JFK Street
Cambridge, MA 02138
United States

Center for Applied Cybersecurity Research ( email )

Wylie Hall 105
100 South Woodlawn
Bloomington, IN 47405
United States

Stanford Center for Internet and Society ( email )

Palo Alto, CA
United States

Stanford Law School ( email )

Stanford, CA 94305
United States

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