Universiteit Leiden

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Research project

The Public Dimension of International Investment Law and Arbitration

How can international investment law and arbitration take account of the public interest in, and more broadly, the public dimension of, the relations between foreign investors and host States ?

2012 - 2015
Eric De Brabandere
Eric De Brabandere, NWO - VENI (2011-2014)

International investment law and arbitration is gaining an increasing importance in international law and, more generally, in today’s world. Indeed, international investment agreements and the decisions of arbitration tribunals impact on the way public interests are protected and promoted by states. In that regard, it is often contended that this regime has a ‘chilling effect’, i.e., that it leads states to refrain from regulating. Such a viewpoint is certainly exaggerated; however, it is a symptom of the need to better incorporate the public character of the relation between foreign investors and States within international investment law and arbitration.

This project aims precisely at addressing this societal need. It does so from two different but complementary perspectives. From a procedural point of view, it first aims to identify and develop the best procedural mechanisms enabling the public interests to be better taken into account in investment arbitration. Such mechanisms include for instance questions of transparencey of the procedures, and the participation of third parties for instance as amicus curiae. From a ‘substantive’ point of view, the project endeavors to identify how public interests could be better integrated in international investment agreements and contracts.

At a time when mega-regional agreements are negotiated (such as the Transatlantic Trade and Investment Partnership (TTIP) between the EU and the US), this project plays an important role to feed policy-makers with designs and solutions to perfect international investment law and arbitration with the view to ensure the protection of public interests.

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