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The Blurring Of The Public/Private Distinction Or The Collapse Of A Category? The Story Of Investment Arbitration, Guillermo J. Garcia Sanchez Aug 2018

The Blurring Of The Public/Private Distinction Or The Collapse Of A Category? The Story Of Investment Arbitration, Guillermo J. Garcia Sanchez

Guillermo J. Garcia Sanchez

The paper is a response piece to Deborah Hensler and Damira Khatam’s new article, Re-inventing Arbitration: How Expanding the Scope of Arbitration Is Re-Shaping Its Form and Blurring the Line Between Private and Public Adjudication. Their main argument regarding the public-private distinction is that the arbitral procedure has changed as a consequence of the substantive issues resolved in this particular ADR system. According to them the arbitral system, which was originally conceived for commercial purposes, has become another way of litigating public law, but without the accountability mechanisms attached to public courts. In this paper, I agree in large part …


Judicial Politics And International Investment Arbitration: Seeking An Explanation For Conflicting Outcomes, David Schneiderman Nov 2009

Judicial Politics And International Investment Arbitration: Seeking An Explanation For Conflicting Outcomes, David Schneiderman

David Schneiderman

International investment arbitration has been described as a private system of justice addressing matters of high public policy. Yet, despite the very high stakes involved – in terms of both policy room and monetary implications – tribunal awards are sometimes difficult to reconcile. This conflict usually is explained with reference to the fact that these are ad hoc tribunals addressing specific disputes arising under particular investment treaties. Not so easily explained are conflicting tribunal awards drawing on virtually identical facts, invoking the same treaty text, where arbitrators seemingly change their mind from one case to the next without any explanation. …