2016 Theses Doctoral

Toward a Private Law Theory of International Investment Law

Arato, Julian

This Dissertation lays the groundwork for a private law theory of international investment law (IIL). This project intervenes in a polarized debate on the nature of the global investment regime. With few exceptions, the scholarship has tended to divide sharply according to stylized visions of IIL as either a system of private, commercial law, or a system of public law. The “commercial law school” tends to be associated with a thick, capital-centric vision of IIL – one that emphasizes insulating private interests from foreign state action. Scholars and practitioners in this vein tend to be apologists for the system, or advocates of only minimal structural reforms. By contrast, the “public law school,” tends to be associated with a thin vision of IIL, highly deferential to national sovereignty, where private interests take a back seat to bona fide national regulatory policy. Its adherents tend to style themselves as critics and reformers, decrying how the status quo seems to have sacrificed national regulatory autonomy at the altar of global capital. While the commercial lawyers have been far too dismissive of the threat posed by IIL to domestic public values, the public lawyers risk losing sight of the values states seek to achieve through IIL in the first place – the promotion of sorely needed foreign direct investment (FDI) and the protection of FDI providers. The debate thus far has proceeded mostly in caricature, and something important has been lost: the possibility of a nuanced system of international private law, sensitive to both the sovereign state’s public values and the private rights and interests of foreign investors whose protection is central to the object and purpose of the regime. These Chapters seek to fill that lacuna.