Journal Article

Investment Treaty Arbitration as a Species of Global Administrative Law

Gus Van Harten and Martin Loughlin

in European Journal of International Law

Published on behalf of The EJIL

Volume 17, issue 1, pages 121-150
Published in print February 2006 | ISSN: 0938-5428
Published online February 2006 | e-ISSN: 1464-3596 | DOI: https://dx.doi.org/10.1093/ejil/chi159
Investment Treaty Arbitration as a Species of Global Administrative Law

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The article outlines a simple thesis: that international investment arbitration – pursuant to regional and bilateral investment treaties – offers the clearest example of global administrative law, strictly construed, yet to have emerged. We present this thesis by explicating four key features of investment treaties: they permit investor claims against the state without exhausting local remedies; they allow claims for damages; they allow investors to directly seek enforcement of awards before domestic courts; and they facilitate forum-shopping. Our argument is that, owing to this unique conjunction of features, the regulatory conduct of states is, to an unusual extent, subject to control through compulsory international adjudication. Having highlighted these features, we then claim that investment arbitration is best analogized to domestic administrative law rather than to international commercial arbitration, especially since investment arbitration engages disputes arising from the exercise of public authority by the state as opposed to private acts of the state. Further, we claim that the linkages between investment arbitration and domestic legal systems are more direct and more closely integrated than other forms of international adjudication in the public sphere. For these reasons, we argue that the emerging regime of investment arbitration is to be understood as constituting an important and powerful manifestation of global administrative law.

Journal Article.  16175 words. 

Subjects: Public International Law

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