van Harten, Hendrik Hugh Angus
(2005)
The emerging system of international investment arbitration.
PhD thesis, London School of Economics and Political Science.
Abstract
The system of international investment arbitration is established by hundreds of investment treaties that have the following key features: 1. States authorize foreign investors (read multinational enterprises) to make and enforce international claims for damages against states in disputes arising from the state's exercise of public authority, without those claims being filtered by the investor's home state or by an international organization; 2. States are subjected to broadly-worded international standards that apply to a wide range of governmental activity, affording arbitration tribunals broad discretion to award damages to investors and thus make decisions about the cost of government, with limited supervision by domestic courts; and 3. Disputes are resolved using a private model of adjudication based on rules of private arbitration and incorporating the enforcement structure of international commercial arbitration. The argument of this thesis is that investment arbitration, although commonly approached as a reciprocally consensual method of adjudication, should instead be viewed as a unique form of governing arrangement. Investment arbitration is a governing arrangement because it is established by a sovereign act of the state and because it is used to resolve regulatory disputes arising from the exercise of pubic authority. This distinguishes investment arbitration from conventional international adjudication (between states) or international commercial arbitration (between private parties). Further, investment arbitration is unique and open to criticism because it combines the prospective and far-reaching, yet selective, individualization of international claims with the use of a private model of arbitration. This distinguishes investment arbitration from other forms of international adjudication which allow individual claims. Overall, characterizing investment arbitration as a unique form of governing arrangement reveals the importance of the system as a means to control the exercise of public authority in the regulatory sphere.
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