Chapter

Approaches and Interpretations

Gus Van Harten

in Investment Treaty Arbitration and Public Law

Published in print August 2008 | ISBN: 9780199552146
Published online January 2009 | e-ISBN: 9780191711558 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199552146.003.0006

Series: Oxford Monographs in International Law

 Approaches and Interpretations

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This chapter examines how investment treaty arbitrators have exercised their power. Four broad approaches emerge from the jurisprudence to date. Two of them emphasize a reciprocal legal framework in their conceptualization of investment treaty arbitration: the first by treating it as a form of commercial arbitration; the second as public international law. In contrast, the third and fourth approaches to the subject recognize the regulatory character of the underlying relationship between investors and state. The first does so by comparing investor protection to the protection of human rights; the second by applying a more prudential public law framework which moderates state liability in order to preserve governmental discretion. Each of these approaches is examined, informed by the view that the appropriate approach is to accept the regulatory context for investment disputes, and thus the relevance of public law, within the boundaries set by the inter-state bargain of an investment treaty.

Keywords: investment treaty arbitration; arbitrators; commercial arbitration; international law; investor rights; public law; state liability

Chapter.  17939 words. 

Subjects: Public International Law

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