This paper presents an analysis of the most significant effects of globalization on the development of international investment law; it asks how the protection of cross-border investment by international arbitral tribunals has transformed the states’ role of providing the public good of legal certainty and summarizes the conclusions in four theses.
First, the proliferation of bilateral investment treaties (BITs) is an expression of the wider trend of treaties being used as basic international “legislative” instruments and represents a further movement towards the juridification of key relationships in the global economy. Second, insofar as modern bilateral investment treaties assure investors material rights along with associated formal enforcement procedures, they contribute to a fundamental change in international law—the individual or legal person in private law is assigned individual rights through a treaty in international law and thus upgraded to the status of a partial subject of international law. Third, in international investment law globalization has caused the states to transform their role as the guarantors of legal certainty: States no longer establish law and order on their own, but rather provide for and guarantee the establishment of law and order through the provision of investor-state dispute settlement procedures. Fourth and last, in a more comprehensive sense, modern international investment law can be viewed as a sort of “return” to or else potential dawning of a much more inclusive and broader notion of public international law. |
No. 089/2009
Tillmann Rudolf Braun
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