Is Investor-State Arbitration ‘Public’?

45 Pages Posted: 13 Aug 2016

See all articles by José E. Alvarez

José E. Alvarez

New York University School of Law

Date Written: August 1, 2016


The essay critiques prevailing descriptions of investor-state arbitration (ISDS) that see this mechanism as a form of ‘public’ adjudication requiring exclusively ‘public law’ reforms going forward, culminating in, as the European Union has recently suggested in the course of negotiations for the investment chapter of the Trans-Atlantic Partnership, its replacement by a permanent international investment court in lieu of arbitration using party-appointed arbitrators. It is skeptical of the ostensible public/private divide and most of the ten reasons advanced in the literature, premised on that divide, for concluding that the international investment regime, and particularly ISDS, is public. It next critiques ten widely praised public law prescriptions for change to the regime or ISDS. It concludes with ten broad lessons for why ISDS, in its current form, is best viewed as a ‘hybrid’ between public and private.

Keywords: investor-state arbitration, public international law, treaty law

JEL Classification: F13

Suggested Citation

Alvarez, José Enrique, Is Investor-State Arbitration ‘Public’? (August 1, 2016). Available at SSRN: or

José Enrique Alvarez (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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