Abstract
One of the main debates of international investment law and arbitration, which divided the investment law community, concerns the legitimacy of the system. Some perceive a legitimacy crisis, while others disagree. The book under review addresses and attempts to solve this crisis by a distinct methodology.
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- 1.
Schill, Public or Private Dispute Settlement? The Culture Clash in Investment Treaty Arbitration and its Impact on the Role of the Arbitrator, in: Weiler/Baetens (eds.), New Directions in International Economic Law, In Memoriam Thomas Wälde, 2011, p. 23.
- 2.
Instead of many, see on the one hand, Franck, The Legitimacy Crisis in Investment Treaty Arbitration: Privatizing Public International Law through Inconsistent Decisions, Fordham Law Review 73 (2005) 4, p. 1521. On the other hand, see Krishan, Thinking about BITs and BIT Arbitration: The Legitimacy Crisis that Never Was, in: Weiler/Baetens (eds.), New Directions in International Economic Law, In Memoriam Thomas Wälde, 2011, p. 107.
- 3.
See the “Public statement on the international investment regime,” 31 August 2010, available at: http://osgoode.yorku.ca/public_statement.
- 4.
See UNCITRAL/NAFTA, Arbitral Award, International Thunderbird Gaming Corp vs. United Mexican States, 26 January 2006, Separate Opinion by Thomas Wälde, paras. 12 et seq.
- 5.
Kingsbury/Schill, Investor-State Arbitration as Governance: Fair and Equitable Treatment, Proportionality, and the Emerging Global Administrative Law, IILJ Working Paper 2009/6, Abstract; see also, Van Harten/Loughlin, Investment Treaty Arbitration as a Species of Global Administrative Law, European Journal of International Law 17 (2006) 1, p. 121 (145–150), stressing the public law nature of investment treaty arbitration; Montt, State Liability in Investment Treaty Arbitration – Global Constitutional and Administrative Law in the BIT Generation, 2009.
- 6.
Caron, who comments on the book under review, see http://ukcatalogue.oup.com/product/9780199589104.do.
- 7.
Schill, The public law challenge: Killing or rethinking international investment law?, Columbia FDI Perspectives, No. 58, 30 January 2012.
- 8.
Investment protection standards covered by the contributions include direct and indirect expropriation, fair and equitable treatment, full protection and security, national treatment, remedies against denial of justice, and transfer of funds.
- 9.
Institutional and procedural issues relate to the applied standards of review, remedies, and transparency.
- 10.
UNCITRAL/NAFTA, Arbitral Award, International Thunderbird Gaming Corp vs. United Mexican States, 26 January 2006.
- 11.
UNCITRAL/NAFTA, Arbitral Award, International Thunderbird Gaming Corp vs. United Mexican States, 26 January 2006, Separate Opinion by Thomas Wälde, para. 12.
- 12.
Similar Vadi, Critical Comparisons: The Role of Comparative Law in Investment Treaty Arbitration, Denver Journal for International Law and Policy 39 (2010) 1, p. 67 (84); Frankenberg, Critical Comparisons: Rethinking Comparative Law, Harvard International Law Journal 26 (1985) 2, p. 411, engaged in a critique of the discourse on comparative law by arguing that comparative legal scholarship’s faith in an objectivity allows culturally biased perspectives to be represented as “neutral.” Contrary to this, critical comparisons have to take into account “[…] the comparatist’s cultural, historical, and personal preconceptions [which] inevitably shape the way she perceives and compares” (p. 416).
- 13.
Kingsbury/Schill, Public Law Concepts to Balance Investors’ Rights with State Regulatory Actions in the Public Interest—the Concept of Proportionality, in: Schill (ed.), International Investment Law and Comparative Public Law, 2010, pp. 75 et seq. (104).
- 14.
Beatty, The Ultimate Rule of Law, 2004; Stone Sweet/Mathews, Proportionality Balancing and Global Constitutionalism, Columbia Journal of Transnational Law 47 (2008) 1, p. 73; Kumm, The Cosmopolitan Turn in Constitutionalism: On the Relationship Between Constitutionalism in and Beyond the State, in: Dunhoff/Trachtman (eds.), Ruling the World? Constitutionalism, International Law and Global Governance, 2009, p. 258.
- 15.
Despite the argumentations found in the book under review, this suggestion has already been made in a prominent article written by Alec Stone Sweet; see Stone Sweet, Investor-State Arbitration: Proportionality’s New Frontier, Law & Ethics of Human Rights 4 (2010) 1, p. 47. Moreover, Alec Stone Sweet and Jud Mathews have engaged in a broad comparative study; see Stone Sweet/Mathews, Proportionality Balancing and Global Constitutionalism, Columbia Journal of Transnational Law 47 (2008) 1, p. 73.
- 16.
Similarly, Burke-White/von Staden, The Need for Public Law Standards of Review in Investor-State Arbitration, in: Schill (ed.), International Investment Law and Comparative Public Law, 2010, p. 689 (711 et seq.).
- 17.
For a closer examination on this point, see Leonhardsen, Looking for Legitimacy: Exploring Proportionality Analysis in Investment Treaty Arbitration, Journal of International Dispute Settlement 3 (2011) 1, p. 89, who argues that, firstly, the proportionality principle has been applied precisely in the type of cases that has caused most controversy, and, secondly, that there does not seem to be a strong legal basis for the application in the cases where it has been applied. See further, Pirker, Seeing the Forest without the Trees—The Doubtful Case for Proportionality Analysis in International Investment Arbitration, in: Herwig/Joerges/Pavlakos (eds.), Proportionality and Post-National Constitutionalism, forthcoming. Pirker rejects the conceptualisation of investment arbitration as a developing constitutional regime. He suggests that the conceptual foundations for using proportionality analysis are shaky, both based upon the nature of the rights typically enshrined in bilateral investment treaties and upon the features of investment arbitration.
- 18.
See von Bogdandy/Venzke, Beyond Dispute: International Institutions as Lawmakers, German Law Journal 12 (2011) 5, p. 979 (993 et seq.).
- 19.
One striking example is the ICSID Case No. ARB (AF)/07/01, Piero Foresti, Laura de Carli, et al. vs. Republic of South Africa. International investment law and arbitration have influenced the implementation of South African Black Economic Empowerment Politics, which originate from the constitutional protection against discrimination as a reaction to the Apartheid regime.
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Hoffmann, R.T. (2013). Stephan W. Schill (ed.). International Investment Law and Comparative Public Law. In: Herrmann, C., Krajewski, M., Terhechte, J. (eds) European Yearbook of International Economic Law 2013. European Yearbook of International Economic Law, vol 4. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-33917-2_26
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