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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 privatized
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 rules of 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 enforceable than 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 the state 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 to resolve controversial disputes, the benefits of a
global economy are no excuse for corrupting our historictradition
of independent courts.
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