Private Authority and Transnational Governance: The Contours of the International System of Investor Protection

39 Pages Posted: 8 Sep 2009

See all articles by Gus Van Harten

Gus Van Harten

York University - Osgoode Hall Law School

Date Written: 2004

Abstract

Conventionally, investors could not sue states directly under international law and arbitration tribunals did not have general jurisdiction over international investment disputes. This has changed, especially since the early 1990s, with the emergence of an international system of investor protection that combines investor-state arbitration and broad standards of investor protection. The system elevates the legal status of investors (but not other individuals) in international law by allowing them to make international claims for damages against host states. Although the system depends on state authority for its establishment and ongoing effectiveness, the system adopts private authority as a method of transnational governance by permitting private investors to make claims and by giving private arbitrators the power to resolve those claims. This provides significant advantages to multinational enterprises at the expense of governmental flexibility in both capital-importing and capital-exporting states, as revealed by the recent explosion of investor claims. This article examines the legal architecture of the system in order to demonstrate how it expands private authority in the context of transnational governance.

Keywords: Investment, arbitration, private authority, transnational governance

Suggested Citation

Van Harten, Gus, Private Authority and Transnational Governance: The Contours of the International System of Investor Protection (2004). Available at SSRN: https://ssrn.com/abstract=1468690 or http://dx.doi.org/10.2139/ssrn.1468690

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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