Public Interests, Private Disputes: Investment Arbitration and the Public Good

This paper seeks to investigate the bases for resistance to arbitration in general -and investor arbitration in particular- focusing on the way in which arbitral tribunals deal with notions of public interest and the public good. The paper hypothesises that while courts have within their terms of reference the capacity to consider notions of public interest, arbitral tribunals do not. It is this core difference in the scope of decision making between the two bodies that could render privately organised dispute resolution unsuitable for disputes that have public aspects, like investor-state disputes. The paper discusses the meaning of public interest and the public good as found in the literature. It then proceeds to consider how tribunals in the investment field have dealt with these concepts. This leads to a conclusion urging not abandonment of arbitration as a component of dispute resolution, but caution. It is argued that unchecked growth in private dispute resolution can threaten perceptions of legitimacy and democratic accountability. The paper adopts a socio-legal methodology in considering the effect of legal mechanisms on social and political phenomena. It is also informed by a law and economics methodology in addressing impacts of dispute resolution mechanisms on economic efficiency. The contribution of the paper rests on theorising motivations for resistance to private dispute resolution, a topical issue in light of the TTIP debate.

To ISDS or not to ISDS: A question of legitimacy in dispute resolution

Investor State Dispute Settlement (ISDS) has gained prominence in recent years with an explosion in the number of investor claims against states. While the evolution of this type of arbitration was expected, its focus and context was not. Investors are currently bringing actions against developed states in unanticipated policy areas. Greece, facing actions from investors challenging its debt haircut and Spain, battling investor challenges to its revamped energy policy are examples of the use of arbitration as a political as well as a dispute resolution tool. It is for this reason why the proposal for the inclusion of ISDS in the Transatlantic Trade and Investment Partnership (TTIP) has caused so much heated discussion. This paper examines the recent evolution and likely trajectory of investor state dispute settlement, reflecting on consequences for perceptions of arbitration and its links with politics and economics.