International Investment Dispute Settlement in the 21st Century: Does the Preservation of the Public Interest Require an Alternative to the Arbitral Model?

Abstract

This paper aims at taking stock of the criticism directed at the mechanism of international arbitration for settling disputes between international investors and host states. This paper also analyzes and describes the main attempts at reforming the arbitral model in response to those criticisms, notably in terms of transparency and participation. It finally briefly presents and evaluates proposals for plain alternatives to the arbitral model in investment dispute settlement, and assesses those proposals in legal and policy terms. The paper closes with a few remarks on the real potential of the arbitral model in investment disputes, and insists on the need to further reform it so that it can serenely and credibly play its role of impartial dispute settlement mechanism in cases often involving high doses of public interest. The paper notably makes a case for the fostering of a peaceful and practical co-existence between arbitral tribunals and domestic courts.