Constitutional Theories of International Economic Adjudication and Investor-State Arbitration

Abstract

Abstract This chapter gives an overview of the diverse ‘constitutional approaches’ of the European Court of Justice (ECJ), the European Free Trade Area (EFTA) Court, the ECtHR, and national courts throughout Europe, for example in their judicial review of governmental interferences into economic freedoms and other fundamental rights on the basis of judicial interpretation and application of ‘constitutional principles’ with due regard to the human rights obligations of the governments concerned. The principles of ‘commutative justice’, ‘contractual justice’, and ‘conventional justice’ underlying private commercial arbitration differ fundamentally from the principles of ‘constitutional justice’ limiting governments and public national and international courts. The judicial task of settling disputes with due regard to the constitutional rights of citizens and constitutional restraints of governance powers is essential for maintaining an ‘overlapping consensus’ on ‘principles of justice’ among states and citizens with competing self-interests and conflicting conceptions for a good life, social justice, and an efficient regulation of the economy.