31 Pages Posted: 26 Aug 2009 Last revised: 16 Sep 2009
Date Written: August 24, 2009
Does the rise of international arbitration signify a retreat of the State from classical adjudication‘ In examining this question, it is important to distinguish contract-based arbitration of individual claims against the State from arbitration pursuant to investment treaties. The former is broadly limited to the private sphere of the State's activity, whereas the latter gives arbitrators a comprehensive jurisdiction over public law. An elaboration of this distinction, and the grey area within it, demonstrates that the significance of international arbitration for juridical sovereignty is its privatization of the authority to define the very concept of the public sphere.
Keywords: international arbitration, sovereignty, investment, retreat of the state
Suggested Citation: Suggested Citation
Van Harten, Gus, The Public-Private Distinction in the International Arbitration of Individual Claims Against the State (August 24, 2009). Available at SSRN: https://ssrn.com/abstract=1461125 or http://dx.doi.org/10.2139/ssrn.1461125