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Clash of Paradigms: Actors and Analogies Shaping the Investment Treaty System

107 American Journal of International Law 45 (2013)

50 Pages Posted: 3 Apr 2012 Last revised: 23 Aug 2013

Anthea Roberts

Australian National University (ANU); School of Regulation & Global Governance (RegNet)

Date Written: January 1, 2013

Abstract

Attempts to analyze controversial issues in the investment treaty system often result in participants drawing comparisons with and analogies from other legal disciplines, most notably public international law, international commercial arbitration, public law, trade law and human rights law. But how do these comparisons shape our thinking about the investment treaty system, why do different comparisons often support different answers to concrete problems, and which participants tend to support which paradigms and why?

This Article critiques the role that the five most common interpretive paradigms are playing in attempts to understand the nature of the investment treaty system. It provides a schema for analyzing what these approaches reveal and obscure about the system and why they often support conflicting outcomes on controversial issues. It also explores why different actors - including states, investors, NGOs, arbitrators and academics - are likely to argue for, or default to, different paradigms based on their divergent interests and/or backgrounds.

Keywords: investment treaty arbitration, investment treaties, investment treaty system, public international law, international commercial arbitration, public law, trade law, human rights, international public law, paradigms, analogies, deference, countermeasures

Suggested Citation

Roberts, Anthea, Clash of Paradigms: Actors and Analogies Shaping the Investment Treaty System (January 1, 2013). 107 American Journal of International Law 45 (2013). Available at SSRN: https://ssrn.com/abstract=2033167

Anthea Roberts (Contact Author)

Australian National University (ANU) ( email )

Canberra, Australian Capital Territory 2601
Australia

School of Regulation & Global Governance (RegNet) ( email )

Canberra, Australian Capital Territory 0200
Australia

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