Journal Article

Antinomies of Public and Private at the Foundations of International Investment Law and Arbitration

Alex Mills

in Journal of International Economic Law

Volume 14, issue 2, pages 469-503
Published in print June 2011 | ISSN: 1369-3034
Published online July 2011 | e-ISSN: 1464-3758 | DOI: https://dx.doi.org/10.1093/jiel/jgr020
Antinomies of Public and Private at the Foundations of International Investment Law and Arbitration

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International investment law has in recent years become a topic of great practical and academic importance, as the thousands of international investment treaties have given rise to hundreds of investor-state arbitrations, and innumerable books and articles. But fundamental questions concerning the regulatory character of international investment law, and what its aims and objectives are, remain the subject of contestation reflected in a variety of policy debates and in competing historical narratives regarding the development of the field.

This article contends that two ‘public–private’ distinctions or antinomies lie behind this indeterminacy, at international investment law’s uncertain foundations—the first dealing with the characterization of international investment law as a form of ‘public’ or ‘private’ law, and the second dealing with the balance that international investment law strikes between ‘public’ and ‘private’ interests or objectives. A number of disputed issues in international investment law and arbitration, which are presented at the surface as merely technical problems, may in reality, it is argued, be products of these deeper underlying theoretical uncertainties.

Journal Article.  16037 words. 

Subjects: Financial Law ; Public International Law ; Economics

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