The Need to Make Sense of a Practice in Investment Arbitration: A Response to Eric De Brabandere

Abstract

Abstract In his article entitled ‘The (Ir)relevance of Transnational Public Policy in Investment Treaty Arbitration – A Reply to Jean-Michel Marcoux’, Eric De Brabandere argues that transnational public policy does not have any significant role to play in investment treaty arbitration, both as a matter of principle and as an avenue to address human rights violations by foreign investors. The present response suggests that a more fundamental point of disagreement between our positions relates to the role of the practice of tribunals in shaping legal norms in international investment law. Inspired by the ‘practice turn’ in the study of international law, it suggests that the relevance and the normativity of transnational public policy are constituted by the practice of tribunals. Addressing human rights violations as an integral part of transnational public policy can thus be considered as a potential evolution of this practice in investment arbitration.