In Defense of International Investment Law

Marc Bungenberg et al (eds.), European Yearbook of International Economic Law, vol. 7 (Cham: Springer, 2016) 309-341. DOI: 10.1007/978-3-319-29215-1_13.

Amsterdam Center for International Law No. 2017-09

Amsterdam Law School Research Paper No. 2017-10

38 Pages Posted: 6 Mar 2017

Date Written: February 23, 2017

Abstract

The article responds to the critical perspective Kate Miles offers on international investment law in her article “Investor-State Dispute Settlement: Conflict, Convergence, and Future Directions”, published in the European Yearbook of International Economic Law. While sharing several concerns Miles identifies, and supporting present reform efforts to make the system more transparent, increase possibilities of involvement for third parties, and ensure policy space, this article presents a generally positive perspective on the foundations of international investment law. It argues that the present system has to be seen as a mechanism to subject international investment relations to the international rule of law, with investor-state arbitration providing a form of access to justice to foreign investors in cases where domestic courts are not sufficiently well-placed to effectively control government action and enforce investment treaty obligations. The system, in other words, vindicates fundamental values of a just world order under law. Furthermore, the article argues that Miles paints a misleading picture of the power arbitrators exercise in the interpretation and application of investment treaties. Rather than developing the system to the detriment of public interests, arbitrators are subject to numerous mechanisms of state control; moreover, they regularly apply interpretative techniques that are respectful of public interests. Finally, the article discusses the cases Kate Miles presents as pathologies of the system and argues that they are not encroachments on governments’ policy space, but involve legitimate disputes that are appropriate for resolution in an international forum.

Keywords: International Investment Treaties, Investor-State Dispute Settlement, Public Interests, Rule of Law, Mechanisms of State Control, Vattenfall v. Germany, Philip Morris v. Uruguay, Bilcon v. Canada

JEL Classification: K33

Suggested Citation

Schill, Stephan W., In Defense of International Investment Law (February 23, 2017). Marc Bungenberg et al (eds.), European Yearbook of International Economic Law, vol. 7 (Cham: Springer, 2016) 309-341. DOI: 10.1007/978-3-319-29215-1_13., Amsterdam Center for International Law No. 2017-09, Amsterdam Law School Research Paper No. 2017-10, Available at SSRN: https://ssrn.com/abstract=2922520

Stephan W. Schill (Contact Author)

University of Amsterdam ( email )

Spui 21
Amsterdam, 1018 WB
Netherlands

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