Investment treaty arbitration has a hybrid nature combining public international law (as regards its substance) with elements of international commercial arbitration (as regards procedure). However, in essence and function it deals with a special, internationalized form of judicial review of governmental conduct that is more akin to the judicial control of governmental action provided for by national administrative and constitutional law than to either classic inter-state dispute resolution or international commercial arbitration. It essentially constitutes a public law discipline. Investment ... More

Investment treaty arbitration has a hybrid nature combining public international law (as regards its substance) with elements of international commercial arbitration (as regards procedure). However, in essence and function it deals with a special, internationalized form of judicial review of governmental conduct that is more akin to the judicial control of governmental action provided for by national administrative and constitutional law than to either classic inter-state dispute resolution or international commercial arbitration. It essentially constitutes a public law discipline. Investment law's public nature is increasingly being recognized in academic writing and arbitral awards, where reference to national administrative law concepts and principles of international law based judicial review of governmental action, such as international trade or human rights law, is used to help specify and apply the open-ended concepts of investment treaties, yet without in depth conceptualization. This book aims to bring these so far only sporadic and not fully developed ad-hoc references to comparative and international administrative law concepts together in order to form a deeper theoretic and systematic framework. The book hopes to develop the ‘bridge’ between treaty-based international investment arbitration and comparative administrative law on both the theoretical and practical level. The major obligations in investment treaties (indirect expropriation, fair and equitable treatment, national treatment, umbrella/sanctity of contract clause), but also major procedural principles are compared with their counterpart in domestic and international public law. That ‘bridge’ will allow international investment law to benefit from comparative public law experience, but also help enhance its legitimacy, political acceptance and ability to develop more fine-tuned interpretations of the central treaty obligations.