Stephan W. Schill (ed.). International Investment Law and Comparative Public Law

Abstract

1 International Investment Law as Public Law? The science of international law can no longer be content with the analogous application of private law categories. It must search the entire body of the �general principles of law recognized by civilized nations� for proper analogies. With the growing importance of international legal relations between public authorities and private legal subjects, public law will be an increasingly fertile source of international law. 1Wolfgang Friedmann�s famous assessment of the role of public law as a source of (general) public international law in 1963 holds even truer vis-a-vis international investment law in 2011. The kind of disputes investment arbitration tribunals have to deal with and the substantive issues they have to decide are widely perceived as matters of public concern, and thus by far transgress the rather isolated bilateral relationship that is the typical characteristic of a private dispute. 2 Whether a state may adopt a general regulatory scheme banning toxic waste 3 or whether it may, in order to prevent an economic collapse, amend laws formerly guaranteeing a fixed exchange rate and unlimited convertibility into a foreign currency 4 genuinely touches upon its sovereignty and indirectly affects a myriad of stakeholders. Gus van Harten deserves credit for pointing the international investment community to the public nature of investment disputes. 5 The recently published volume, International Investment Law and Comparative Public Law edited by Stephan W. Schill, seeks to profit from such view by assessing various issues of international investment law through the public law lens. As this large collection of essays premises, 6 international investment law may be considered a form of public law because it involves the adjudicatory control of the exercise of public authority, providing non-state entities with direct rights of action against the host state. Moreover, this public law system operates on the global level by �