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The Public-Private Distinction in the International Arbitration of Individual Claims Against the State

31 Pages Posted: 26 Aug 2009 Last revised: 16 Sep 2009

Gus Van Harten

York University - Osgoode Hall Law School

Date Written: August 24, 2009

Abstract

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

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

Gus Van Harten (Contact Author)

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada
416 650 8419 (Phone)

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