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States’ regulatory powers and the turn to public law in international investment law and arbitration

Musto, Callum (2020) States’ regulatory powers and the turn to public law in international investment law and arbitration. PhD thesis, London School of Economics and Political Science.

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Abstract

Disputes between foreign investors and host States often involve fundamental questions concerning the distribution of opportunity and cost in society. Adjudicators settling such disputes decide issues with significant bearing on the State-market relationship and States’ capacities to define and pursue the public interest. The perception that investment tribunals — and the rules they apply — often fail to appropri-ately balance competing public and private interests and to permit host States adequate regulatory space has contributed significantly to investment arbitration’s enduring legitimacy crisis. In response, scholars and practitioners have increasingly analogised investment law and arbitration with domestic public law and regional rights-based adjudication, based on alleged functional and structural similarities. This thesis critically examines the turn to public law in international investment law, focusing particu-larly on its manifestations in arbitral practice. After considering how international law governs States’ ‘regulatory powers’ and tracing the origins of the turn to public law, inquiry seeks to answer two ques-tions: (i) to what extent, if any, is the turn to public law discernible in arbitral practice?; and (ii) what consequences flow the turn to public law as it has manifested in arbitral practice, particularly for States’ capacities to define and pursue the public interest? Examining arbitral practice concerning two ‘borrowed’ public law concepts in detail — the ‘police pow-ers doctrine’ and proportionality principle — the thesis maps arbitrators’ use of extraneous materials and incorporation of norms and approaches derived from other fields of law, considers the impact of borrowing on arbitral reasoning, and assesses whether arbitral recourse to borrowed public law concepts constitutes the valid application of extant law. Based on trends in arbitral practice, it then presents the broader normative case against reconceptualising investment law and arbitration as a species of interna-tional public law, and suggests alternative — more legitimate — means of addressing the field’s actual and perceived ills.

Item Type: Thesis (PhD)
Additional Information: © 2020 Callum Musto
Library of Congress subject classification: K Law > K Law (General)
Sets: Departments > Law
Supervisor: Lang, Andrew
URI: http://etheses.lse.ac.uk/id/eprint/4229

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