Investment Treaty Arbitration and Public Law

ISBN-10: 0199552142

ISBN-13: 9780199552146

Edition: 2008

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Description:

The recent explosion of investment treaty arbitration marks a revolutionary change in both international and public law, above all because it demonstrates how states have unwittingly privatised key powers of the courts in public law. This book outlines investment treaty arbitration as a public law system, by precisely demonstrating the significance of giving arbitrators comprehensive jurisdiction to decide regulatory disputes between business and state. In doing so, it exposes some startling consequences of transplanting rulesof commercial arbitration into the regulatory sphere. First, private arbitrators can award compensation to investors in ways that go well beyond domestic systems of state liability in public law. Second, these awards can be enforced in as many as 165 countries, making them more widely enforceablethan other judicial decisions in public law. Third, public law can be interpreted in private as a matter of course, without any appeal to a court to correct errors of law. The conflict between private arbitration and public law poses a serious challenge to open and accountable judging. But the critical flaw of the system - hitherto neglected - is its threat to judicial independence based on security of tenure. Under investment treaties, business claims against thestate are decided by privately-contracted adjudicators, who win appointments only as more claims are brought. Thus, as the book explains, the 'judge' has a financial stake in how public law is interpreted and in the outcome of the dispute. While it is laudable to use international adjudication toresolve controversial disputes, the benefits of a global economy are no excuse for corrupting our historic tradition of independent courts.
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Book details

List price: $70.00
Copyright year: 2008
Publisher: Oxford University Press, Incorporated
Publication date: 10/15/2008
Binding: Paperback
Pages: 248
Size: 6.25" wide x 9.25" long x 0.75" tall
Weight: 0.836
Language: English

Assistant Professor, Osgoode Hall Law School, York University, Ontario

List of Abbreviations
List of Key Websites
Table of Cases (Investment Arbitration; International; Domestic)
Table of Domestic Statutes
Table of Treaties
Introduction
The system of investment treaty arbitration
The scope and complexity of the system
The exceptionality of the system
A Return to the Gay Nineties?
Historical Background
The context of post-colonial conflict
The proposals for a multilateral investment code
The Emergence of the System
The explosion of claims
The role of arbitration treaties
Explanations for the emergence of the system
Conclusion
From Contract to Public Law
The Analytical Framework
The public-private distinction
Sovereignty and regulatory adjudication
The Origins of the Treaty Structure
The establishment of international commercial arbitration
The expansion into the regulatory sphere
Investment Treaty Arbitration as Regulatory Adjudication
The character of international commercial arbitration
The specific consent: arbitration as contract
The general consent: arbitration as governing arrangement
The investor's consent
Conclusion
Scope and Standards of Review
The Scope of Investment Treaty Arbitration
The Standards of Review
National treatment
The minimum standard of treatment
Expropriation
Conclusion
The Transformation of International Law
The Individualization of Claims
The Prospective Consent
The Dynamic of State Liability
The Far-reaching Nature of Claims
The removal of the duty to exhaust local remedies
The facilitation of forum-shopping
International Enforceability
Conclusion
Approaches and Interpretations
The Discretion of Arbitrators
The Interpretive Approaches of Arbitrators
The analogy to commercial arbitration
The analogy to public international law
The investor rights approach
The public law framework
Conclusion
The Businessman's Court
Four Criteria of Public Law Adjudication
Accountability
Openness
Coherence
Independence
The Options for Reform
The limits of domestic responses
An international investment court
Bibliography
Index
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