Guillermo Garcia Sanchez, ‘The Blurring of the Public/Private Distrinction or the Collapse of a Category? The Story of Investment Arbitration’

… In the case of investment arbitration, the consequence to Hensler and Khatam is that States lose because businesses are challenging their policies, yet there are no accountability mechanisms attached to the procedure. Investment arbitration has ‘turned into a weapon for corporations to undermine laws properly adopted by democratic governments’. Moreover, the effort to include new procedural protections in investment arbitration has only generated delays and increased the costs of disposition, without entirely giving the due process protections and public accountability that domestic courts can offer. In this paper, I agree in large part with Hensler and Khatam’s contention that we are facing a collapse of the public-private distinction, at least in the case of investment arbitration. However, my view is also that the trend to include public law-oriented elements into the arbitral procedure misses a counter-intuitive point … (more)

Garcia Sanchez, Guillermo J, (2018) ‘The Blurring of the Public/Private Distinction or the Collapse of a Category? The Story of Investment Arbitration’, Nevada Law Journal: Volume 18 : Issue 2, Article 8.

First posted 2018-06-03 17:19:12

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